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[2017] ZAWCHC 25
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Mineral Sands Resources (Pty) Ltd v Magistrate for the District of Vredendal, Kroutz NO and Others (18701/16) [2017] ZAWCHC 25; [2017] 2 All SA 599 (WCC) (20 March 2017)
THE
HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE
DIVISION, CAPE TOWN)
In
the matter between
Case
No:18701/16
MINERAL
SANDS RESOURCES (PTY)
LTD
APPLICANT
and
MAGISTRATE
FOR THE DISTRICT OF
VREDENDAL,
Mr CS KROUTZ
N.O.
1
st
RESPONDENT
MINISTER
OF ENVIRONMENTAL AFFAIRS
2
nd
RESPONDENT
MINISTER
OF MINERAL
RESOURCES
3
rd
RESPONDENT
MINISTER
OF WATER AND
SANITATION
4
th
RESPONDENT
MINISTER
OF ENVIRONMENTAL AFFAIRS &
DEVELOPMENT
PLANNING, WESTERN CAPE
GOVERNMENT
5
th
RESPONDENT
DIRECTOR-GENERAL
OF ENVIRONMENTAL
AFFAIRS
6
th
RESPONDENT
HEAD
OF THE DEPARTMENT OF
ENVIRONMENTAL
AFFAIRS & DEVELOPMENT
PLANNING,
WESTERN CAPE GOVERNMENT
7th
RESPONDENT
Coram
:
ROGERS J
Heard:
20-23 FEBRUARY 2017
Delivered:
20 MARCH 2017
JUDGMENT
ROGERS J:
Introduction
[1]
This case concerns the validity of a search warrant
issued by the first respondent on 26 September 2016 in which he
authorised a
search of the applicant’s Tormin sand mine near
Lutzville. Among other issues, the application raises questions
(i) about
the interpretation of statutory provisions giving
effect to the government’s One Environmental System agreement,
an arrangement
intended to establish a single environmental system
for assessing the environmental aspects of activities, including
mining activities,
and (ii) about the powers of the various
kinds of inspectors appointed to monitor and enforce compliance with
environmental
legislation. Despite some uncertainty on this, the
legislation giving effect to the One Environmental System can for
present purposes
be taken to have come into force on 8 December 2014.
[2]
The applicant (‘MSR’) was represented by Mr
Hodes SC leading Mr de Waal.
[3]
The application is opposed by the second, fifth, sixth
and seventh respondents. I shall refer to them collectively as the
respondents.
They were represented by Mr Paschke leading Mr Sidaki
and Ms Bleazard. The other respondents abide the court’s
decision.
[4]
I shall refer to the individual respondents as follows:
·
the first respondent (the Magistrate for the
District of Vredendal) – the Magistrate;
·
the second respondent (the national Minister of
Environmental Affairs) and the department of which he is the
political head –
the Environment Minister and the DEA
respectively (the sixth respondent is the Director-General of the
DEA);
·
the third respondent (the national Minister of
Mineral Resources) and the department of which he is the political
head – the
Mining Minister and the DMR respectively;
·
the fourth respondent (the national Minister of
Water and Sanitation) and the department of which he is the political
head –
the Water Minister and the DWS respectively;
·
the fifth respondent (the provincial Minister of
Environmental Affairs & Development Planning, Western Cape
Government) and
the department of which he is the political head –
the MEC and the DPWC respectively (the seventh respondent is the Head
of the DPWC).
[5]
The main legislative instruments relevant to this
application are:
·
the National Environmental Management Act 107 of
1998 (‘NEMA’);
·
the Environmental Impact Assessment Regulations
promulgated in terms of NEMA (‘the EIA Regulations’);
·
various listing notices promulgated in terms of s
24(2) and s 24D of NEMA identifying activities requiring
environmental authorisation
and identifying the competent authority
to grant the authorisation (‘the Listing Notices’);
·
the National Environmental Management: Integrated
Coastal Management Act 24 2008 (‘the Coastal Act’);
·
the Control of Use of Vehicles in the Coastal
Area Regulations of 27 June 2014 (‘the Coastal Regulations’);
·
the National Water Act 36 of 1998 (‘the
Water Act’);
·
the Mineral and Petroleum Resources Development
Act 28 of 2002 (‘the Mining Act’);
·
the regulations promulgated under the Mining Act
(‘the Mining Regulations’).
·
the Criminal Procedure Act 51 of 1977 (‘the
CPA’), particularly s 21 thereof, being the provision in
terms of which
the Magistrate issued the warrant.
[6]
It is convenient to discuss the main features of the
legislation before setting out the facts. I confine myself to those
aspects
which have some bearing on the issues argued before me.
NEMA
prior to 8 December 2014
[7]
In terms of NEMA a person needs an environmental
authorisation as contemplated in s 24 if the person intends to
commence an
activity identified in a Listing Notice. The Listing
Notices are promulgated by the Environment Minister. In practice the
Environment
Minister promulgates four Listing Notices, the
distinction being the rigour of the processes for assessing the
potential impacts
of the activity. The processes in question are
contained in the EIA Regulations.
[8]
The Listing Notices identify the competent authority for
granting the environmental authorisation. Prior to 8 December 2014
the
competent authority for granting environmental authorisations in
the Western Cape was the DPWC unless the activity was of a kind
described in s 24C(2), in which case the competent authority was
the Environment Minister. Mining as such was not a listed
activity.
However a company intending to embark on mining would typically have
had to perform activities which were listed activities
(eg
establishing infrastructure for the bulk transportation of water;
facilities for the storage of fuel; clearing indigenous vegetation
covering more than 1 ha etc) and would thus have needed environmental
authorisation for those activities in terms of s 24 of NEMA.
[9]
In terms of s 24N of NEMA the competent authority can
require an applicant to submit an environmental management programme
(‘EMP’
or ‘NEMA EMP’) as a precondition for
the consideration of an application for an environmental
authorisation. The main
function of an EMP is to set out the proposed
management, mitigation, protection and remedial measures that will be
undertaken
to address the environmental impacts of the listed
activities.
[10]
In terms of the EIA Regulations an applicant with an
approved environmental authorisation and EMP may apply to have them
amended.
[11]
Section 24G of NEMA sets out the consequences of
commencing a listed activity without environmental authorisation. A
person who
has done so may apply to the competent authority for an
environmental authorisation. On receipt of the application the
competent
authority may direct the applicant immediately to cease the
activity pending a decision. The applicant must pay an administrative
fine, not exceeding R5 million, as determined by the competent
authority. If an environmental authorisation is issued, it takes
effect only from the date of issue, ie it does not retrospectively
legitimise the unlawful commencement of the activity. (Such
conduct
is a criminal offence – s 49A(1)(a).)
[12]
Part 2 of Chapter 7 of NEMA deals with the enforcement
of NEMA and of ‘specific environmental management Acts’
(hereafter
‘specific Acts’), a term defined in s 1.
Included in the definition are the Coastal Act and the Water Act.
Prior to
8 December 2014, ss 31B, s 31BA and s 31C of
NEMA empowered the Environment Minister, the Water Minister and the
MEC to appoint environmental management inspectors. For convenience I
shall refer to inspectors appointed by these three authorities
as
national inspectors, water inspectors and provincial inspectors
respectively. Section 31D, headed ‘Mandates’, provided
that, when so designating a person as an inspector, the competent
authority could determine whether the inspector was designated
for
the enforcement of whole or part of NEMA and/or specific Acts.
[13]
The functions of inspectors are set out in s 31G.
They must monitor and enforce compliance with the laws for which they
have
been designated. They may investigate any act or omission in
respect of which there is a reasonable suspicion that the act might
constitute an offence or a breach of the law or a breach of a term or
condition of a permit, authorisation or other instrument.
Their
general powers are contained in s 31H. They have the right to
question persons, to require the production of documents,
to take
photographs, to take samples and so forth. Section 31H(5) states that
an inspector must be regarded as a peace officer
and may exercise all
the powers assigned to a peace officer or non-commissioned police
officer in terms inter alia of Chapter 2
of the CPA in order to
comply with his or her mandate. Section 21 of the CPA is part of
Chapter 2.
The
Mining Act prior to 8 December 2014
[14]
Section 22 of the Mining Act deals with the lodging of
applications for mining rights. In terms of s 23 the Mining Minister
must
grant a mining right if certain conditions are met. One of these
is that the mining will not result in unacceptable pollution,
ecological degradation or damage to the environment.
[15]
Prior to 8 December 2014 s 23(5) of the Mining Act
provided that a mining right came into effect on the date on which
the applicant’s
environmental management programme (‘EMP’
or ‘Mining EMP’) was approved in terms of s 39(4).
In that
regard s 37 stated that the principles set out in s 2 of NEMA
applied to all mining operations. Section 38 provided that the holder
of a mining right had to consider, investigate, assess and
communicate the impact of its mining on the environment as
contemplated
in s 24(7) of NEMA and had to manage all environmental
impacts in accordance with its approved Mining EMP. Section 39(1)
provided
that every person who applied for a mining right in terms of
s 22 had to conduct an EIA and submit an EMP within 180 days of the
date of being so notified by the Regional Manager, these processes
being prescribed in the Mining Regulations.
[16]
Section 40 of the Mining Act provided that, when
considering a Mining EMP, the Mining Minister had to consult with the
DEA. Section
39(4)(b) stipulated that the Mining Minister could not
approve a Mining EMP without considering the DEA’s comments.
[17]
Prior to 8 December 2014, therefore, the Mining
Minister’s decision to approve an applicant’s Mining EMP
and to grant
the mining licence effectively constituted the
environmental authorisation to conduct the mining activity. At the
same time, the
applicant would typically have needed to obtain from
the MEC or Environment Minister a NEMA environmental authorisation
preceded
by the approval of a NEMA EMP.
[18]
Section 39(6) stated that the Mining Minister could
approve an amended EMP. Somewhat unnecessarily, s 102 provided
that an
EMP could not be amended without the written consent of the
Mining Minister.
[19]
Section 91 of the Mining Act empowers the Mining
Minister to designate officers as persons authorised to carry out the
functions
set out in s 91(4) and s 92. Essentially these
are powers of targeted and routine inspections respectively.
[20]
Regulations 48-52 of the Mining Regulations prescribed
how the environmental impacts of mining were to be assessed and the
requirements
for a Mining EMP. As in the case of activities
identified in NEMA Listing Notice 2, the applicant was required to
submit a scoping
report for approval, followed by an EIA report.
There are some differences between the NEMA procedure and the mining
procedure.
For example, the NEMA EIA Regulations require a public
participation process both in relation to the scoping report and the
EIA
report whereas the Mining Regulations required a public
participation process only in relation to the EIA report. There are
other
differences, the EIA Regulations generally being more detailed.
NEMA
and Mining Act as from 8 December 2014
[21]
NEMA was amended
by Act 62 of 2008 and by Act 25 of 2014. The Mining Act was amended
by Act 49 of 2008. The amendments of NEMA relating
to mining, and the
amendment of the Mining Act, seem to have been intended to come into
operation on 8 December 2014 though a close
reading of the convoluted
legislation would suggest that the commencement date was 1 September
2014.
[1]
The amended EIA
Regulations and the new Listing Notices, which accommodated the
inclusion of mining among the listed activities
for purposes of NEMA,
were promulgated on 4 December 2014 and came into effect on 8
December 2014, consistent with an understanding
that the relevant
provisions of NEMA and the Mining Act were to come into force on 8
December 2014. In a government press release
of 6 December 2014 it
was stated that the roll out of the One Environmental System would
start on 8 December 2014. The parties
were willing to argue the case
on the basis that 8 December 2014 was the commencement date and,
since nothing turns on this, I
shall regard it as such.
[22]
The main features of NEMA as amended are, for present
purposes, the following. The Environment Minister remains responsible
for
identifying listed activities. However in terms of s 24C(2A)
the Mining Minister must be identified as the competent authority
for
granting environmental authorisations where the listed activity
directly relates to mining. (This is reflected in the new Listing
Notices.) Section 24N makes provision for the Mining Minister to
require an applicant for an environmental authorisation to submit
an
EMP. An appeal against a decision made by the Mining Minister or his
delegee (cf s 42B) lies to the Environment Minister
(s 43(1A)).
[23]
A new s 31BB states that the Mining Minister may
designate any DMR staff member as an environmental mineral resource
inspector.
(I shall refer to such persons as ‘mining
inspectors’.) In the section containing the ‘mandates’
of inspectors,
the following provision has been added as s 31D(2A):
‘
The
[Mining Minister] may designate a person as an environmental mineral
resources inspector for the compliance monitoring and enforcement
of
the provisions of this Act or of a specific environmental management
Act in respect of which powers are conferred on him or
her.’
[24]
Section 31D(3) provides that a person designated as an
environmental management inspector or environmental mineral resource
inspector
may exercise any of the powers given to environmental
management inspectors in NEMA that are necessary for the inspector’s
mandate and that are specified by the relevant Minister or MEC by
notice in writing to the inspector. A mining inspector, like
a
national, water or provincial inspector, thus ordinarily has the
functions and general powers set out in ss 31G and 31H,
including the power in s 31H(5) to be treated as a peace officer
or police official for purposes of Chapter 2 of the CPA.
[25]
A contentious issue in the present case is whether
national, water, provincial and mining inspectors have concurrent
jurisdiction
to monitor compliance with, and enforce, the provisions
of NEMA insofar as they relate to mining or whether only mining
inspectors
may do so. With this issue in mind, it is necessary to set
out in full the provisions of ss 31D(4)-(9) which came into
force
on 8 December 2014 (I shall substitute for the provisions in
NEMA the terminology of convenience used in this judgment):
‘
(4) Despite
the provisions in subsections (2A) and (3), the [Environment
Minister] may, with the concurrence of the [Mining
Minister], if the
[mining inspectors] are unable or not adequately able to fulfil the
compliance monitoring and enforcement functions,
designate
environmental management inspectors to implement these functions in
terms of this Act or a specific environmental management
Act in
respect of which powers have been conferred on the [Mining Minister].
(5) In
the event that a complainant alleges that a specific compliance
monitoring and enforcement function relating to
prospecting,
exploration, mining and production has not been implemented or has
been inadequately implemented, the complainant
must submit, in
writing, information substantiating such allegations to the [Mining
Minister].
(6) In
the event that the complainant is not satisfied with the response
from the [Mining Minister], the complainant
may submit, in writing,
such information to the [Environment Minister] with substantiating
documentation, including details of
the engagement with the [Mining
Minister].
(7) On
receipt of such information referred to in subsection (6), the
[Environment Minister] must consult with the [Mining
Minister] on his
or her response to the complainant.
(8) Subsequent
to subsection (7), the [Environment Minister] may, in concurrence
with the [Mining Minister], within a
reasonable period of time and
where appropriate –
(a) assist
or support the [Mining Minister] to fulfil his or her compliance
monitoring and enforcement obligations under this
Act; or
(b) direct
the environmental management inspectors as contemplated in subsection
(4) to undertake the compliance monitoring
and enforcement functions.
(9) The
[Environment Minister] must inform the complainant of steps taken in
response to the complaint.’
[26]
It is convenient, at this point, to refer to the
explanatory memorandum which accompanied the bill which became Act 25
of 2014.
Regarding the new ss 31BB and 31D(2C), the memorandum
said the following:
‘
Clause
11: Insertion of section 31BB
The
Director-General responsible for mineral resources will implement
[NEMA] as far as it relates to listed or specified activity
directly
related to prospecting, exploration, mining or production. Therefore,
it is also important for the [Mining Minister] to
enforce those
environmental authorisations issued by him or her. This amendment
will empower the [Mining Minister] to designate
[mining inspectors],
who will be responsible for compliance monitoring and enforcement of
environmental provisions under NEMA.
Clause
12: Amendment of section 31D
This
amendment provides for the powers of the [mining inspectors]. The
amendment also ensures that enforcement takes place when
capacity
challenges are experienced. In such instances, the [Environment
Minister] may, with the concurrence of the [Mining Minister],
if the
[mining inspectors] are unable or not adequately able to fulfil the
compliance monitoring and enforcement functions, designate
environmental management inspectors to implement these functions.
The
amendment also makes provision for the circumstances where a
complainant alleges that a specific compliance monitoring and
enforcement function relating to prospecting, exploration, mining and
production has not been or has inadequately been implemented.
The
section sets out the procedure to follow in such an instance and, if
all the avenues are exhausted as indicated in the section,
the
[Environment Minister] may either decide to assist and support the
[Mining Minister] to fulfil the enforcement function or
direct
environmental management inspectors to fulfil the function.’
[27]
With effect from 8 December 2014, ss 38-42 of the
Mining Act were repealed. These were the provisions dealing inter
alia with
environmental impact assessments and the approval of Mining
EMPs as a pre-requisite for the granting of mining rights. The
following
somewhat Delphic provision has been inserted as s 38A
under the heading ‘Environmental authorisations’:
‘
(1) The [Mining
Minister] is the responsible authority for implementing environmental
provisions in terms of [NEMA] as
it relates to prospecting, mining,
exploration, production or activities incidental thereto on a
prospective, mining, exploration
or production area.
(2) An
environmental authorisation issued by the [Mining Minister] shall be
a condition prior to the issuing of a permit
or the granting of a
right in terms of this Act.’
[28]
Section 102 of the Mining Act has been amended. The new
s 102(2) has not yet been brought into force. The new s 102(1)
is a repeat of the old s 102, save that a reference has now been
added to an environmental authorisation issued in terms of
NEMA (ie
issued by the Mining Minister).
Transitional
provisions
[29]
The transitional provisions applicable to the amendments
of NEMA and the Mining Act present their own difficulties. Section 12
of
Act 62 of 2008 as amended by Act 25 of 2014 contains the following
relevant transitional provisions:
‘
(1) Anything
done or deemed to have been done under a provision repealed or
amended by this Act –
(a) remains
valid to the extent that it is consistent with [NEMA] as amended by
this Act until anything done under [NEMA] as
amended by this Act
overrides it; and
(b) subject
to paragraph (a), is considered to be an action under the
corresponding provision of [NEMA] as amended by this
Act.
(2) An
application for authorisation of an activity that is submitted in
terms of Chapter 5 of [NEMA] and that is pending
when this Act takes
effect must, despite the amendment of [NEMA] by this Act, be
dispensed with in terms of Chapter 5 of [NEMA]
as if Chapter 5 had
not been amended.
…
(4) An
environmental management plan or programme approved in terms of the
[Mining Act];
[sic]
immediately before the date on which this
Act came into operation must be regarded as having been approved in
terms of [NEMA] as
amended by this Act.
…
(7) An
application for a right or permit in relation to prospecting,
exploration, mining or production in terms of the
[Mining Act] that
is pending on the date referred to in section 14(2)(b) of [Act 62 of
2008], must be dispensed of
[sic]
in terms of that Act as if
that Act had not been amended.’
[30]
As mentioned previously, the date contemplated in
s 12(4) may be 1 September 2014 or 8 December 2014 (my
assumption being the
latter). The effect of s 12(4) is that a
Mining EMP approved prior to 8 December 2014 is to be regarded as an
EMP approved
in terms of s 24N of NEMA.
[31]
The expression
‘that Act’ in s 12(7) is a reference to the Mining
Act. The ‘date referred to in section 14(2)(b)’
of Act 62
of 2008 is, on a literal interpretation, the date on which Act 49 of
2008 came into force, namely 7 June 2013, but I
agree with the
respondents’ submission that what was intended was a date 18
months after 7 June 2013, namely 8 December 2014.
[2]
There was some debate as to whether s 12(7) would include an
application in terms of s 102 of the Mining Act to amend
a
Mining EMP. If s 12(7) applies to an application to amend a Mining
EMP, the effect of s 12(7) would be that such an amendment
application, pending as at 8 December 2014, would have to be
finalised in terms of the Mining Act without reference to the fact
that with effect from 8 December 2014 the provisions in the Mining
Act dealing with Mining EMPs were deleted.
[32]
A narrower interpretation would be that s 12(7) is
concerned only with applications for mining rights and mining
permits. If
such an application is pending as at 8 December 2014, it
must be finalised without reference to the amendments made to the
Mining
Act with effect from 8 December 2014. This would mean that the
applicant would only need to satisfy the provisions in the unamended
Mining Act dealing with environmental assessments and Mining EMPs;
the applicant would not have to embark on a fresh environmental
process in terms of NEMA as amended. As I explain later, this in my
opinion is the preferable view.
[33]
The 2014 EIA Regulations contain further transitional
provisions. Regulation 53(1) states that an application submitted in
terms
of the previous (2010) EIA Regulations which is pending when
the 2014 Regulations take effect (8 December 2014) must be ‘dispensed
with’ in terms of the 2010 EIA Regulations as if they had not
been repealed. Regulations 39 and 46 of the 2010 EIA Regulations
regulated applications to amend environmental authorisations and NEMA
EMPs respectively.
[34]
Regulation 54(1) of the 2014 EIA Regulations states that
an application submitted in terms of the Mining Regulations which is
pending
as at 8 December 2014 must be ‘dispensed with’ in
terms of the Mining Regulations as if the latter regulations had not
been repealed. Regulation 54(3) says that for this purpose
‘application’ includes an application for the amendment
of a Mining EMP. Regulation 54(2) provides that an application
submitted after 8 December 2014 for the amendment of a Mining EMP
must be dealt with in terms of the new 2014 EIA Regulations.
[35]
Regulation 54 is curious for several reasons. Firstly,
it is surprising to find transitional provisions relating to the
Mining Act
and Mining Regulations in the EIA Regulations. It is not
self-evident that the power to make this regulation is conferred on
the
Environment Minister by s 44 of NEMA. Second, the Mining
Regulations did not then, and do not now, regulate applications to
amend Mining EMPs. Third, the Mining Regulations have not been
repealed.
[36]
The new s 38B of the Mining Act, inserted by Act 49
of 2008, contains what may be regarded as further transitional
provisions
but it has not yet come into operation. Subsection (1)
reads thus:
‘
(1) An
environmental management plan or environmental management programme
approved in terms of this Act before and at the
time of the coming
into effect of [NEMA], shall be deemed to have been approved and an
environmental authorisation been issued
in terms of [NEMA].
[37]
This provision is nonsensical. NEMA came into effect on
21 January 1999. The Mining Act came into force on 1 May 2004.
Accordingly
it would be impossible for there to have been any EMPs
approved in terms of the Mining Act as at 21 January 1999. The
lawmaker
may have intended to refer to NEMA as amended with effect
from 8 December 2014. If so, the new s 38B(1) would be a
repetition
of s 12(4) of Act 62 of 2008.
The
Coastal Act
[38]
The Coastal Act is unaffected by the amendments made to
NEMA and the Mining Act. The Coastal Act is one of the specific Acts
contemplated
in NEMA. Section 63 provides that where an environmental
authorisation in terms of NEMA is required for ‘coastal
activities’,
the competent authority (which, as from 8 December
2014, would be the Mining Minister if the ‘coastal activity’
took
the form of mining) must take into account all relevant factors,
including those specified in s 63(1). The term ‘coastal
activities’ means activities listed in terms of NEMA and which
take place in the ‘coastal zone’ or outside the
coastal
zone but which have or are likely to have a direct impact on the
coastal zone. (MSR’s mining activities take place
within the
‘coastal zone’ as defined in the Coastal Act.)
[39]
Section 70(1)(e)(i) of the Coastal Act states that
no person may, except on the authority of a dumping permit granted in
terms
of s 71, ‘dump at sea any waste or other material’.
In terms of s 71 the Environment Minister is the person authorised
to
issue a dumping permit. In terms of s 79(1)(e), contravention of
s 70(1)(e) is a criminal offence.
[40]
The expression ‘dumping at sea’ is defined
in s 1, the potentially relevant part of which is para (a):
‘
(a) any
deliberate disposal into the sea of any waste or material other than
operational waste from a vessel, aircraft, platform
or other man-made
structure at sea’.
[41]
It is common cause that the mining inspectors appointed
by the Mining Minister in terms of s 31D(2A) of NEMA do not have
powers
to monitor compliance with, and enforce, the Coastal Act and
that the Mining Minister has not purported to confer any such powers
on them. It is also common cause that the national and provincial
inspectors who feature in the present case have been designated
by
the Environment Minister and the MEC respectively to exercise
monitoring and enforcement functions in relation to NEMA and all
specific Acts, including the Coastal Act.
Statutory
recognition of the One Environmental System
[42]
The One Environmental System is expressly recognised in
s 50A of NEMA and in s 163A of the Water Act, the terms of
which
are similar. Section 50A of NEMA states that any proposed
amendments to the provisions of NEMA or any other legislation that
may
have the effect of amending the provisions of the ‘Agreement’
must be subject to concurrence between the Environment
Minister, the
Water Minister and the Mining Minister.
[43]
The ‘Agreement’ is defined as meaning
‘…
the
Agreement reached between the [Environment Minister], the [Water
Minister] and the [Mining Minister] titled
One
Environmental System
for
the country with respect to mining, which entails –
(a) that
all environment related aspects would be regulated through one
environmental system which is [NEMA] and that all environmental
provisions would be repealed from the [Mining Act];
(b) that
the [Environment Minister] sets the regulatory framework and norms
and standards, and that the [Mining Minister] will
implement the
provisions of [NEMA] and the subordinate legislation as far as it
relates to prospecting, exploration, mining or
operations;
(c) that
the [Mining Minister] will issue environmental authorisations in
terms of [NEMA] for prospecting, exploration, mining
or operations,
and that the [Environment Minister] will be the appeal authority for
these authorisations; and
(d) that
the [Environment Minister], the [Mining Minister] and the [Water
Minister] agree on fixed time-frames for the consideration
and
issuing of the authorisations in their respective legislation and
agree to synchronise the time frames.’
[44]
The One Environmental System is also dealt with at some
length in the explanatory memorandum previously mentioned.
Factual
background
[45]
In 2007 MSR applied to the DMR for a mining right to
mine heavy mineral sands (zircon, ilmenite, garnet, leucoxene and
rutile) on
a 12-km stretch of beach adjacent to the farm Geelwal
Karoo in the Vredendal district. This required the preparation of a
Mining
EMP.
[46]
Since the mining operation required MSR to perform
certain activities listed in terms of NEMA (at that stage in the 2006
Listing
Notices), MSR also made application to the DPWC for
environmental authorisation (the DPWC being the competent authority
for purposes
of the implicated activities). This required the
preparation of a NEMA EMP.
[47]
On 27 November 2008 the DMR approved the Mining EMP and
issued the mining right to MSR. On 9 June 2011 the DMR approved an
amended
Mining EMP. (At this stage mining had not yet begun.)
[48]
On 25 July 2012 the DPWC granted the requested
environmental authorisation to MSR and approved the NEMA EMP. The
environmental authorisation
related to various activities contained
in the 2006 Listing Notices and to certain further activities
contained in the 2010 Listing
Notices. The conditions of the
authorisation stated inter alia that MSR had to comply with any other
statutory requirements that
might be applicable to the undertaking of
the listed activities.
[49]
Construction of the mining facilities began in April
2013. Mining began in the second half of the year. The mine is known
as the
Tormin mine.
[50]
The approved mining operation was in summary the
following. Sand would be mined mainly between the low-water mark and
the lesser
of the high-water mark and a setback line of 10 m
from the toe of the cliff (the 10 m buffer zone was to minimise the
risk
of cliff failure). Wet sand would be pumped from hydraulic
excavators to trommels (to remove seaweed etc) and then to two mobile
primary beach concentrators (‘PBCs’). The PBCs remove
water and extraneous material. This waste would be returned to
the
mined-out area. The concentrate from the PBCs would be transported by
articulated dump trucks (‘ADTs’) from the
beach to the
site of the secondary concentrator plant (‘SCP’) located
above the cliff. Waste (tailings in the form
of sand) from the SCP
would be returned to the beach by the ADTs and deposited with the
waste from the PBCs for distribution in
the mined-out area as
uniformly as possible. Ocean tidal action was to be the major
influence in reinstating the beach profile
within a short period of
time. Water from the SCP would be returned to the beach by a pipeline
routed along the beach access roads
used by the ADTs. The
zircon/rutile-rich concentrate would be transported by truck to
Saldanha Bay or Cape Town for export or sale
in the local market.
[51]
Mining strictly in accordance with this method did not
last very long. By the end of the year MSR relocated the PBCs from
the beach
to the SCP site above the cliff. At some stage thereafter
MSR introduced further changes. Instead of returning the tailings to
the beach by ADT, MSR installed a pipeline for this purpose. MSR also
installed two garnet stripping plants (GSPs) on the SCP site.
With
the SCP site becoming congested, MSR began to expand it by clearing a
further area around the approved SCP site. A haul road
was widened
from 8 m to 12 m.
[52]
The moving of the PBCs from the beach to the SCP site is
one bone of contention. MSR claims that this change was effected
because
severe storm conditions in October 2013 made it impractical
and unsafe to operate the PBCs on the beach. The opposing view is
that
MSR made the change to improve productivity and that the change
resulted in increased water run-off from the SCP site which in turn
caused the subsequent collapse of the cliff beneath the SCP.
[53]
A DMR official conducted a site inspection in June 2014
and found that MSR was contravening the EMP by mining within the 10 m
buffer area. Two provincial inspectors were assigned to investigate
this complaint. At a meeting on 25 June 2014 MSR told the inspectors
that it wanted to expand the footprint of the SCP from 2,8 ha to 5,8
ha and make additional access roads. MSR sought guidance as
to what
authorisation was needed. The inspectors told MSR that the expansion
of the SCP would require an amendment to the NEMA
environmental
authorisation and that the construction of new roads was a listed
activity which would trigger the need for a further
environmental
authorisation. This was confirmed in a letter of 2 July 2014.
[54]
On 16 July 2014 the provincial inspectors conducted an
inspection to investigate DMR’s complaint. They concluded that
MSR
had not mined in the buffer area. They did observe, however, that
MSR had cleared about 250 m² of indigenous vegetation. They
informed MSR that it was unlawful to clear more than 1 ha without an
environmental authorisation. They were assured that the clearing
activity had ceased and that the area would be naturally
rehabilitated. (The DPWC’s findings in this regard are
reflected
in letters dated 1 October 2014 and 23 October 2014.)
[55]
On 23 July 2014 MSR applied to the DPWC for an amendment
of its NEMA environmental authorisation and its NEMA EMP. The changes
included
the expansion of the SCP by 3 ha, the placement of the PBCs
at the back of the SCP site and the piping of tailings to the beach.
On 1 August 2014 the DPWC notified MSR that the amendment application
required a public participation process.
[56]
Also in July 2014, MSR applied to the DMR for an
amendment of its Mining EMP. A public participation process ensued
and the amendment
application was finally ready for DMR’s
consideration on 2 December 2014.
[57]
In the meanwhile, and on 23 October 2014, MSR’s
environmental consultant, GCS, met with one of the provincial
inspectors,
Ms Schippers, to discuss the pending application to amend
the NEMA environmental authorisation and the NEMA EMP. GCS told Ms
Schippers
that MSR had already cleared an area of approximately 1,3
ha outside the approved SCP area. Ms Schippers’ reaction was
that
the commencement of this clearing was unlawful and could thus
not be considered as part of the application to amend the
environmental
authorisation and EMP; in respect of the unlawful
activity, MSR would have to follow the procedure set out in s 24G
of NEMA.
[58]
The One Environmental System came into force on 8
December 2014. On that date MSR’s applications for the
amendment of its
NEMA environmental authorisation, NEMA EMP and
Mining EMP were pending. The effect of the legislative changes was
that, subject
to any applicable transitional provisions (i) the
Mining Minister became the competent authority to approve any NEMA
environmental
authorisation and NEMA EMP which MSR needed; and
(ii) that no Mining EMP or amended Mining EMP was required.
[59]
However s 12(2) of Act 62 of 2008 and regulation 53
of the 2014 EIA Regulations provided that the application to amend
the
environmental authorisation and NEMA EMP were to be dealt with as
if NEMA and the 2010 EIA Regulations had not been amended.
Accordingly
the MEC remained the competent authority to deal with
those two pending applications.
[60]
In regard to MSR’s pending application for the
amendment of its Mining EMP, its disposition requires one to
interpret s 12(7)
of Act 62 of 2008 and the curious regulation
54 of the 2014 EIA Regulations. More of this later.
[61]
MSR did not pursue
its amendment application with the DPWC and that application lapsed
after six months.
[3]
This was
confirmed in a letter from the DPWC to MSR dated 21 May 2015.
[62]
In regard to the pending application with the DMR for
the amendment of the Mining EMP, MSR wrote to the DMR on 20 January
2015 complaining
that one of its officials, Mr Briers, was insisting
that MSR repeat most of the environmental impact assessments. MSR
accused Mr
Briers of bias and requested intervention by his
superiors. This request seems to have succeeded. On 14 April 2015 the
DMR approved
the amended Mining EMP in terms of s 39(6) of the
Mining Act. Para 20 of the approval stated that any activities listed
in
terms of the new NEMA regulations required approval from the
competent authority before the activities could be commenced. (By
April 2015 s 39 of the Mining Act had been repealed. Accordingly
the DMR’s reliance on s 39(6) presupposes that the section
had
continued force by virtue of a transitional regime.)
[63]
MSR’s attitude is, in short, that the approval of
14 April 2015 is the only approval it needed to conduct the
activities set
out in the amended Mining EMP. It contends that the
amended Mining EMP is deemed to be an amended NEMA EMP. It disputes
being under
any obligation to seek an amendment of its existing NEMA
environmental authorisation or any additional NEMA environmental
authorisation.
[64]
In the meanwhile, and in February 2015, the DEA and DPWC
received via the Municipality a complaint document alleging that MSR
had
increased the size of the SCP site without authorisation, that
uncontrolled water run-off had contributed to the failure of the
cliff, that MSR was mining within the 10 m buffer area and within a
conservation area. As a result of the complaint, the provincial
inspectors conducted an inspection on 24 February 2015 (MSR did not
object to the jurisdiction of the provincial inspectors). This
revealed that MSR had widened the main access road by 4 m, that the
SCP area had been expanded by about 3,8 ha and that mining
was
occurring within conservation areas demarcated in the NEMA
environmental authorisation. The findings were recorded in a letter
to MSR dated 7 April 2015. The DPWC required MSR to submit an audit
report prepared by an external environmental auditor.
[65]
In April 2015 the DPWC received further complaints to
the effect that MSR had: (i) constructed a jetty-like structure
in the
sea; (ii) removed unauthorized material from a
decommissioned mine in a nature reserve; (iii) expanded the SCP
area;
(iv) installed pipelines for transporting tailings to the
beach outside the approved mining footprint; (v) mined within
conservation areas; (vi) mined within the 10 m buffer zone. The
DPWC communicated these complaints to the DMR in a letter
dated 15
May 2015, evidently on the basis that the DMR was now the competent
authority to deal with these matters.
[66]
On 22 April 2015 Mr Dlulane, a national inspector with
the DEA, wrote to MSR regarding the complaints received via the
Municipality
and notifying MSR that he would be conducting an
inspection on 29 April 2015. The inspection was deferred because the
relevant
official from MSR was not available. MSR wanted to have a
meeting before the inspection but Mr Dlulane insisted that the
inspection
take place first.
[67]
On 20 May 2015 MSR wrote to Mr Dlulane responding to the
complaints and expressing the view that MSR was being ‘persecuted
by a certain individual or a group of persons’. MSR said that
DMR inspectors had visited the mine that same day (20 May)
to
investigate similar complaints. MSR expressed the view that as at 8
December 2014 the DMR became the competent authority within
mining
areas and that the Mining Minister was empowered by NEMA to appoint
mining inspectors. MSR requested ‘clarification
in terms of
your competent authority’.
[68]
On 21 May 2015 the DMR wrote to MSR concerning the
inspection of the previous day, expressing the view that the
construction of
the jetty and the expansion of the SCP area was
within the environmental authorisation granted on 25 July 2012. The
letter recorded
that the DMR had become the competent authority as
from 8 December 2014 and that in the DMR’s view no further
amendment was
required to MSR’s environmental authorisation and
EMP.
[69]
Mr Dlulane said that the national inspectors from the
DEA would be coming for the inspection on 29 May 2015. MSR replied
that it
first needed a response to the letter of 20 May 2015. MSR
wanted to ‘understand the legislative authority for your
investigative/compliance
visit’. Mr Dlulane replied by stating
that he was responsible for enforcing the Coastal Act and the Coastal
Regulations.
He listed various matters which fell within his remit,
including ‘illegal coastal discharges’. (This was the
first
occasion on which possible contraventions of the Coastal Act
and the Coastal Regulations were mentioned.) MSR thanked Mr Dlulane
for explaining the scope of his work but said that this was not the
issue. The issue was that the area in question was a mining
area. On
MSR’s understanding, as from 8 December 2014 all environmental
related activities within a mining area fell within
the jurisdiction
of the DMR. What MSR was trying to ascertain was ‘the
legislative authority you have within the mining area,
not your job
description’.
[70]
Mr Dlulane responded by sending MSR the Coastal
Regulations and said he would be conducting his inspection to
establish compliance
therewith (ie the use of vehicles on the beach).
He called on MSR to indicate as a matter of urgency whether MSR would
permit him
and his officials to gain access to the premises. In a
reply dated 25 May 2015 MSR challenged the supposed contravention of
the
Coastal Regulations and said that the use of vehicles was a
listed activity authorised by MSR’s environmental authorisation
and EMP. After repeating that the DMR was now the competent authority
and that NEMA authorised the Mining Minister to appoint mining
inspectors, MSR requested Mr Dlulane to provide his prescribed
identity card in terms of s 31F(2) of NEMA and concluded:
‘
Lastly,
Mr Dlulane, the issue in dispute is your authority and your mandate
and it is MSR’s right to be provided with such
answers before
the intended inspection and such should not be construed as the
refusal or any words to that effect.’
[71]
In an email to MSR of 28 May 2015 Mr Dlulane said that
mining inspectors were not authorised to enforce the Coastal
Regulations.
He said it had become apparent that the inspection of 29
May 2015 would not be possible and that he would be ‘engaging
in
other means’ to achieve his objective of inspecting the
premises.
[72]
From MSR’s perspective, the matter rested there
for about 16 months until, on 29 September 2016, a large contingent
of officials
arrived at its Tormin mine to execute a search warrant
issued by the Magistrate the previous day in terms of s 21 of the
CPA.
[73]
The official who applied for the warrant was Ms
Meissenheimer, a grade 2 national inspector. She attached to her
affidavit a supporting
affidavit by Mr Dlulane, a grade 1 national
inspector. She also attached what she described as photographs of
illegal activities
from complainants who wanted to stay anonymous.
This attachment was a document headed ‘Further Transgressions’
consisting
of text and photographs (‘the FT document’).
Although the FT document purports to have been produced by a firm
called
PB Professional Services (for which contact details were
given), no individual author or complainant was identified. After the
FT document were a further 24 pages of images and related captions.
Since the FT document did not refer to them, they do not appear
to
have formed part thereof. Ms Meissenheimer did not explain their
provenance.
[74]
As is well established, an applicant for a search
warrant must establish, by evidence under oath (i) the existence
of a reasonable
suspicion that an offence has been committed;
(ii) the existence of reasonable grounds for believing that
things connected
with the offence may be found on the premises to be
searched (
Minister of Safety and Security v
Van der Merwe & Others
2011 (2) SACR 301
(CC) para 39).
[75]
Ms Meissenheimer sought to establish that there were
reasonable grounds for believing that there were documents and other
things
at the Tormin mine which might afford evidence of the
commission of the following reasonably suspected offences:
·
a violation of s 49A(1)(e) of NEMA by unlawfully
and intentionally or negligently causing significant degradation of
the environment,
namely the collapse of the cliff (‘the failing
cliff charge’);
·
a violation of s 79(1)(e) of the Coastal Act by
dumping waste or other material at sea without a dumping permit in
contravention
of s 70, namely by disposal of tailings into the sea
(‘the dumping charge’);
·
three violations of s 49A(1)(a) of NEMA –
commencing listed activities in contravention of s 24F(1) – by
developing
the jetty (‘the jetty charge’), by clearing an
area of more than 1 ha (‘the increased footprint charge’),
and by development of a road wider than 4 m (‘the road
charge’).
[76]
Ms Meissenheimer said in her affidavit that from the
photographs received from the anonymous source it was clear that
these five
activities had taken place.
[77]
In his affidavit Mr Dlulane said that at around the
beginning of 2015 the DEA received a complaint from a member of the
public regarding
suspected illegal activities at the Tormin mine. He
repeated verbatim a list of initial complaints set out in the first
paragraph
of the FT document. He then said that, because he was
appointed to enforce the Coastal Act, it became his responsibility to
lead
the investigation into the complaints. In preparation for the
investigation he had written to MSR’s general manager informing
him of his intention to conduct an inspection. He claimed that after
several follow-up telephone calls he was ‘denied access
to the
mining site’ because MSR ‘was questioning my authority
and whether I am designated as an Environmental Management
Inspector’. He alleged that, as an inspector responsible for
enforcement of the Coastal Act, he was authorised to investigate
any
reported incidents that may cause adverse effects to the coastal
environment despite the location in which the incident occurred.
He
also alleged that MSR’s refusal to allow him access raised
suspicion that MSR might be engaging in illegal or unauthorized
activities. It was thus ‘imperative’ that a search
warrant be issued to the DEA for purposes of seizing any material
or
equipment used in the commission of a crime in terms of the Coastal
Act.
[78]
The warrant named Ms Meissenheimer and 14 other
officials as persons who could assist in the execution of the
warrant. These included
national inspectors, provincial inspectors,
mining inspectors, a town planner from the Municipality, two land
surveyors from the
Department of Land and Rural Development and five
police officers.
[79]
The contingent which arrived at 10h20 on 29 September
2016 to execute the warrant comprised 26 officials, including 16
police officers
(among them, dog handlers). However only one police
officer not named in the warrant accompanied the search party. The
remaining
unnamed officers waited in their vehicles. The contingent
did not include any representatives from the DMR. Although the
warrant
included the names of two mining inspectors, at the last
minute they were instructed by their superior to withdraw because the
DEA insisted that police officers form part of the search party.
[80]
Ms Meissenheimer handed to MSR’s representative,
Mr van der Poll (the mine security officer), a copy of the warrant
together
with the supporting affidavits and attachments. The search
finished at around 18h00. Various documents were seized. Photographs
and measurements were taken. Whether samples were collected does not
appear. The documents were returned several weeks later after
copies
had been made.
[81]
MSR launched the present proceedings on 18 October 2016.
The
delay from May 2015 to September 2016
[82]
In their answering papers the respondents explain the
delay from 26 May 2015 to 28 September 2016 as follows. Because of
MSR’s
uncooperative position, the DEA had to ensure ‘that
it was on a sound legal footing before non-consensually obtaining
evidence
which could withstand challenge in a criminal court’.
MSR’s challenge to the DEA’s authority ‘required
careful consideration’. MSR made this challenge shortly after
the coming into effect of the legislative amendments. The
transitional
provisions were ‘highly complex’. Before
acting the DEA had to ‘satisfy itself of its continued
jurisdiction
to enforce environmental laws on mining sites’.
[83]
Furthermore, the cooperative governance provisions of
the Constitution called for consultation between the DEA, DMR, DPWC
and Municipality.
[84]
The respondents do not say what steps they took to
satisfy themselves of the DEA’s continued jurisdiction. If they
obtained
legal advice, they do not disclose when and by whom it was
furnished.
[85]
The consultation between the various state agencies
seems only to have started in July 2016. This led to the
establishment of a
task team with representatives from the various
agencies and with the DEA as the ‘lead agency’.
[86]
Delay is not in itself a basis for impugning the
warrant. What can be said with confidence is that, given the
leisurely way in which
the DEA proceeded, this was not a case where
shortcomings in the application for the warrant could be excused on
the grounds that
urgent action was needed. Furthermore the
significant interaction between the various agencies justifies as a
reasonable inference
that material information known to the DPWC and
DMR was probably shared with and known to the DEA.
Ms
Meissenheimer’s mandate as national inspector (the mandate
attack)
[87]
MSR contends that Ms Meissenheimer, as a national
inspector, did not have the mandate to investigate any of the
suspected contraventions
apart from the dumping charge. MSR’s
argument is that, save in the circumstances set out in s 31D(4)-(9)
of NEMA, the
investigation of the other four suspected contraventions
was exclusively the domain of mining inspectors. The respondents
accept
in argument, correctly so, that if Ms Meissenheimer’s
powers of inspection were restricted in the manner contended for by
MSR, she did not have the power in terms of s 31H(5) to apply
for a search warrant. This flows from the fact that in terms
of
s 31D(5) an inspector only has the powers conferred by Chapter 2
of the CPA on a peace officer or police official ‘to
comply
with his or her mandate in terms of section 31D’, ie for
purposes of complying with such mandate. (I shall refer to
this
ground of review as the mandate attack.)
[88]
The respondents also appeared to concede that only the
dumping charge was exempt from the mandate attack. This ground of
attack
would definitely strike at the jetty charge, the increased
footprint charge and the road charge, since those charges are
concerned
with activities relating to mining in respect of which the
Mining Minister is the competent authority and over which the mining
inspectors have jurisdiction. MSR correctly acknowledges that the
mandate attack does not strike at the dumping charge since the
Mining
Minister has no jurisdiction to grant a dumping permit in terms of
the Coastal Act and the mining inspectors have no mandate
to enforce
the Coastal Act.
[89]
The position regarding the failing cliff charge is less
straightforward. The alleged statutory offence, s 49A(1)(e), is
not
concerned with listed activities. The charge is not that MSR
breached the terms of its environmental authorisation by moving the
PBCs from the beach to the SCP site. The charge is the unlawful and
culpable causing of significant degradation of the environment.
Although the alleged offending conduct occurred at a mine and in the
course of mining operations, the Mining Minister’s competence
in NEMA is not defined territorially (ie with reference to conduct
occurring within a mining area) but with reference to listed
activities for which he is the competent authority. On this view,
mining inspectors would not have the mandate to investigate
contraventions of s 49A(1)(e).
[90]
On the other hand, s 38A of the Mining Act states
that the Mining Minister is the responsible authority for
implementing NEMA’s
environmental provisions insofar as they
relate to mining and related incidental activities on a mining area.
The term ‘mining
area’ is defined in s 1 of the
Mining Act and would include the Tormin mine. Section 38A is headed
‘Environmental
authorisations’. It is possible that the
section should be construed as simply confirming that the Mining
Minister is the
competent authority for granting environmental
authorisations in respect of mining activities. MSR’s counsel
submitted that
s 38A has wider effect and applies to all the
provisions of NEMA insofar as they bear on things which happen in a
mining area.
On this view, the Mining Minister would be responsible
for implementing all of NEMA’s provisions relating to
environmental
degradation, including the offence created by
s 49A(1)(e). The mandate of mining inspectors would thus include
the investigation
of suspected contraventions of s 49A(1)(e).
The solution would have in its favour the avoidance of bifurcated
NEMA inspections.
[91]
I need not finally decide whether the failing cliff
charge falls within the mandate of the mining inspectors. This is
because there
is, in my view, a separate basis on which the warrant
should be set aside in relation to the failing cliff charge (more of
this
later). I am reluctant to decide the question because it was not
fully argued. I rather gained the impression that the respondents
themselves accepted that the mandate attack, if sound, struck at all
the charges other than the dumping charge. It was only in
preparing
this judgment that I had reason to doubt the correctness of that
approach.
[92]
On the face of it, there is no limit on the mandates
which can be conferred on national inspectors and water inspectors in
terms
of s 31D(1). The Environment Minister and the Water Minister
may appoint national inspectors and water inspectors for the
enforcement
of NEMA and all specific environmental management Acts.
It may be (I do not know) that in practice the Water Minister only
appoints
water inspectors to enforce the provisions of the Water Act
but there is nothing in NEMA which prevents the Water Minister from
appointing water inspectors to enforce NEMA or which prevents the
Environment Minister from appointing national inspectors to enforce
the Water Act.
[93]
In regard to provincial inspectors, s 31D(2)
provides that such inspectors may only be appointed for the
enforcement of those
provisions of NEMA or other specific Acts as are
administered by the province or in respect of which the province
exercises or
performs assigned or delegated powers or duties. Subject
to this limitation, their mandates can apply to all the provisions of
NEMA and specific Acts. It is not necessary in this case to decide
whether national inspectors and water inspectors are entitled
to
enforce environmental provisions which are administered by the
province. NEMA itself does not suggest such a restriction though
it
might perhaps be supported on the basis that, in terms of s 125(2)(b)
of the Constitution read with Part A of Schedule
4, it is the
function of the provinces to implement national legislation within
the functional area of the environment.
[94]
As with provincial inspectors, mining inspectors cannot
be appointed with unlimited mandates. In terms of s 31D(2A) the
Mining
Minister can only appoint mining inspectors to monitor and
enforce environmental legislation in respect of which powers are
conferred
on the Mining Minister. Powers are conferred on the Mining
Minister as the competent authority to grant environmental
authorisations
in respect of listed activities directly relating to
mining (s 24C(2A)). Mining inspectors can thus monitor and
enforce compliance
with the terms of environmental authorisations
issued in respect of mining activities and can monitor and enforce
compliance with
those statutory provisions which are applicable where
a person unlawfully engages in an activity for which an environmental
authorisation
from the Mining Minister should have been obtained
(particularly ss 24F and 24G).
[95]
If s 31D ended with subsection (2A), there would be no
basis for finding that national inspectors and water inspectors with
unlimited
mandates do not have concurrent jurisdiction to enforce
matters which mining inspectors are competent to enforce. Of course,
it
would be administratively inefficient and potentially unfair to
persons identified for investigation that they should be subjected
to
parallel investigations and potentially contradictory instructions
but the solution to those sorts of problems lies in sensible
official
cooperation rather than strained legal distinctions. (The long title,
preamble and s 12(a) of NEMA would require
the various agencies
to cooperate and avoid duplication.)
[96]
However, the view that national inspectors and water
inspectors have concurrent jurisdiction with mining inspectors over
mining
matters makes a mockery of ss 31D(4)-(9). Subsection (4)
takes for granted that in the ordinary course s 31D(2A) would
have the effect of conferring exclusive jurisdiction on mining
inspectors. But despite s 31D(2A), so says subsection (4),
the
Environment Minister may, with the Mining Minister’s
concurrence, appoint national inspectors to enforce environmental
legislation in relation to mining if the mining inspectors are unable
or not adequately able to fulfil their monitoring and enforcement
functions. The Environment Minister may not follow this course unless
the Mining Minister agrees; it is not enough for the Environment
Minister to consult with the Mining Minister. If national inspectors
in any event had concurrent jurisdiction to monitor and enforce
environmental legislation in relation to mining, the preconditions in
s 31D(4) would be unnecessary.
[97]
The same is true of subsections (5)-(9). One has there
an elaborate scheme to deal with the case where someone complains
that the
mining inspectors are not adequately performing their
functions. The complaint must be referred to the Mining Minister. If
the
complainant is dissatisfied with the response, he may refer it to
the Environment Minister, whereafter the Environment Minister
must
consult with the Mining Minister. Following such consultation, but
only with the Mining Minister’s concurrence, the
Environment
Minister may assist the Mining Minister to perform the function or
direct national inspectors as contemplated in subsection
(4) to
perform the function. The Environment Minister must inform the
complainant of the steps taken in response to the complaint.
This
carefully crafted procedure would be unnecessary if, from the outset
and without the concurrence of the Mining Minister, national
inspectors could monitor and enforce compliance with environmental
legislation relating to mining.
[98]
Although the mandates of national inspectors, water
inspectors and provincial inspectors may overlap, there is no doubt
that efficient
administration is generally better served by
non-overlapping mandates. This would be achieved by interpreting
s 31D so as
to give mining inspectors exclusive jurisdiction to
monitor and enforce environmental legislation relating to mining
except where
one or other of the circumstances set out in
ss 31D(4)-(9) applies. This interpretation best gives effect to
the One Environmental
System agreement. Although there is only one
national government, the One Environmental System agreement is,
unusually, an agreement
between three national Ministers. Prior to
the coming into operation of the One Environmental System, mining as
such was not a
listed activity regulated by NEMA. The DMR might well
have been cautious about allowing matters previously within its
domain to
pass to the control of the DEA.
[99]
The new s 38A of the Mining Act also lends some
support to this interpretation. It provides that the Mining Minister
is the
responsible authority for implementing environmental
provisions in terms of NEMA as it relates to mining. There is no
comparable
provision in the case of the Water Minister or the MEC.
There are also the passages from the explanatory memorandum which I
previously
quoted and which explain why it was important for the
Mining Minister to be given the power to enforce the provisions of
NEMA in
relation to mining and why it was appropriate to allow for
exceptions if there were capacity challenges within the DMR or
complaints
from outside.
[100]
A similar regime to that laid down in s 31D(5)-(9)
applies where an applicant for an environmental authorisation from
the Mining
Minister is dissatisfied because a decision on the
application has not been made within the prescribed time-frames –
see
s 24C(2C)(a)-(f). Following a process of consultation with
the Mining Minister, the Environment Minister may make the decision.
There can be no doubt that in this setting the Environment Minister’s
right to grant the environmental authorisation exists
only if the
circumstances identified in s 24C(2C) are present and if the
procedure laid down in that subsection has been followed.
[101]
In
Berg River Municipality v
Zelpy 2065 (Pty) Ltd
2013 (4) SA 154
(WCC)
paras 27-31 I discussed and gave my understanding of the leading
authorities on implying terms into statutes. In my view
it is
necessary to imply, in ss 31D(1), a qualification that
inspectors appointed under that provision may not exercise the
powers
contemplated in s 31D(2A) unless so designated pursuant to
s 31D(4) or s 31D(8)(b). Effect cannot be given
to the
clear intention of the lawmaker without implying such a
qualification.
[102]
Mr Paschke, who argued the respondents’ case with
conspicuous ability, submitted that, if this were my view, I should
find
that there had been substantial compliance with ss 31D(5)-(9)
so that Ms Meissenheimer should be regarded as having been duly
designated in terms of s 31D(8)(b). I cannot accept this
fallback submission. Nowhere in the papers did the respondents allege
substantial compliance with these provisions or claim that anyone
ever purported to act in terms of them. There is no evidence
that the
respective Ministers consulted with each other; or that the Mining
Minister agreed that the Environment Minister could
designate a
national inspector to undertake monitoring and enforcement functions
in relation to MSR; or that the Environment Minister
designated Ms
Meissenheimer pursuant to s 31D(8)(b). Ms Meissenheimer
purported to act in terms of her ordinary designation
pursuant to
s 31B read with s 31D(1).
[103]
Mr Paschke also
argued that Ms Meissenheimer’s mandate from the Environment
Minister did not contain any qualification and
that in terms of the
Oudekraal
principle
[4]
her designation and
mandate stood until set aside. Again I disagree. I have found that
the qualification previously mentioned must
of necessity be implied
in s 31D(1). The same qualification, in my view, must of
necessity be implied in the mandates issued
by the Environment
Minister, Water Minister and MEC.
[104]
It follows that Ms Meissenheimer was not entitled to
apply for the warrant in relation to the jetty charge, the increased
footprint
charge and the road charge. She did have the mandate to
apply for the warrant in relation to the dumping charge. Whether she
had
the mandate to apply for the warrant in relation to the failing
cliff charge is something which I do not intend to decide.
Non-disclosure
[105]
An investigator who applies ex parte to a judicial
officer for a search warrant is under a duty of good faith to
disclose any material
fact of which he or she is aware that might
influence the judicial officer in coming to a decision (
Powell
NO & Others v Van der Merwe NO & Others
2005
(5) SA 62
(SCA) para 42;
Thint (Pty) Ltd v
National Director Of Public Prosecutions & Others; Zuma &
Another v National Director Of Public Prosecutions
& Others
2009
(1) SA 1
(CC) para 102). In
Powell
Cameron
JA said that the investigator had to be ‘ultra-scrupulous’
in making disclosure. In
Thint
Langa
CJ, while quoting this statement with apparent approval, observed
that, particularly in a complex and vast case such as was
under
consideration in
Thint
,
there was no ‘crystal-clear distinction’ between material
and non-material facts. The official would need to exercise
judgement. The test for materiality should not be set so high as to
render it practically impossible for the state to comply with
its
duty of disclosure.
Suggestion
of recent complaints?
[106]
MSR complained that the application for the search
warrant created the false impression that the DEA was acting on
recent complaints
whereas there had been a lull of 16 months. I do
not think that this complaint has merit. Mr Dlulane stated that the
complaint
was received at the beginning of 2015. He did not talk
about more recent complaints.
The
mandate dispute
[107]
A more substantial criticism is that the DEA failed to
disclose that as from 8 December 2014 the DMR had become the
competent authority
in respect of the environmental aspects of MSR’s
mining activities, that MSR had on this basis challenged the mandate
of
the DEA to investigate MSR’s alleged environmental
contraventions and that this point had been debated at some length in
correspondence between MSR and the DEA.
[108]
The DEA alleged in its application that MSR was denying
access to its inspectors, raising a suspicion of illegal activity,
whereas
in truth MSR’s assertion was that the DEA’s
national inspectors did not have the mandate to conduct the
inspection.
MSR would not have resisted an inspection by mineral
inspectors. The DMR’s inspectors did in fact visit the site and
were
satisfied as to the legality of MSR’s operations.
[109]
The high-water mark of disclosure on this aspect was Mr
Dlulane’s statement that MSR questioned his authority and
whether
he was designated as an inspector. Mr Dlulane alleged that,
as an inspector responsible for enforcing the Coastal Act, he had
authority
to investigate any incidents causing adverse effects in the
coastal environment.
[110]
I am satisfied that this falls far short of what should
have been disclosed. MSR’s central objection to an inspection
by national
inspectors was that, by virtue of the legislative changes
effected as from 8 December 2014, the national inspectors did not
have
the mandate to conduct the inspection. The Magistrate was not
alerted to these legislative changes. None of the correspondence in
which the point was ventilated was disclosed to him. The Magistrate
had no opportunity to apply his mind to the legal questions
which I
have addressed at some length. The point was one of substance. I have
ultimately upheld MSR’s contention insofar
as it relates to the
jetty charge, the increased footprint charge and the road charge.
Whether the mandate attack strikes at the
failing cliff charge is a
debatable point – there are fair arguments on both sides.
[111]
Mr Paschke submitted that a legal point is either good
or bad. If MSR’s legal point were good, it would be a
sufficient basis
for impeaching the warrant (as indeed I have
concluded on three of the five charges); if the legal point were bad,
the point would
be revealed as non-material. I reject that
submission. The duty of disclosure is aimed at ensuring that a
judicial officer, who
is being asked to act prejudicially against a
party who does not have the protection of being heard, can apply his
mind to the
issues materially bearing on his decision. If there was a
legal issue of substance, it was for the Magistrate, not the DEA, to
decide it. Materiality is for the court, not the litigant and the
latter’s advisers.
[112]
The duty of disclosure underlies the related duty of
legal practitioners, particularly in ex parte proceedings, to draw to
the court’s
attention any authority which may have the effect
of disentitling their client to relief (see
Ex
Parte Hay Management Consultants (Pty) Ltd
2000
(3) SA 501
(W) at 507A-B). In England it has been held that
t
here is no
fundamental distinction between a litigant's duty of full disclosure
of material facts and his legal representatives'
duty to assist the
court by reference to (or a correct summary of) relevant authorities,
statutory provisions and practice directions
(
Memory
Corporation plc v Sidhu (No 2)
[2002] 1 WLR 1443
(CA) at 1454C-H
per
Robert Walker LJ and at 1460A-B
per
Mummery LJ).
[113]
In
Schlesinger v Schlesinger
1979
(4) SA 342
(W), one of our leading authorities on the duty of
disclosure in ex parte proceedings, the applicant sought to set aside
an ex
parte order obtained by the respondent because the respondent
had failed to disclose that the applicant was contending in foreign
proceedings that he was not domiciled in South Africa (a matter
relevant to jurisdiction). Le Roux J said that a litigant in ex
parte
proceedings could not omit any reference to a fact or attitude of his
opponent which was relevant to the point in issue just
because the
litigant did not accept its correctness (352D).
[114]
In England, Australia and New Zealand it is part of the
duty of good faith in ex parte proceedings to anticipate and deal
fairly
with defences which the affected person could be expected to
raise (see, eg,
JSC
Mezhdunarodniy
Promyshelnniy Bank v Pugachev
[2014]
EWHC 4336
(Ch) paras 171-172;
Orpen v
Tarantello
[2009] VSC 143
para 27;
Tranz
Rail Ltd v Wellington District Court
[2002]
3 ZNZLR 780 (CA) paras 21-22). All the more would this be so where
the affected person has in fact raised a point of substance
in
previous correspondence. In Australia, Dixon J said the following in
Thomas A Edison Ltd v Bullock
[1912] HCA 72
;
(1912)
15 CLR 679
at 681-682 (a passage often cited with approval)
:
‘
Uberrima
fides
is
required, and the party inducing the Court to act in the absence of
the other party, fails in his obligation unless he supplies
the place
of the absent party to the extent of bringing forward all the
material facts which that party would presumably have brought
forward
in his defence to that application. Unless that is done, the implied
condition upon which the Court acts in forming its
judgment is
unfulfilled and the order so obtained must almost invariably fall.’
(See also
Towns &
County Sport Resorts (Holdings) (Pty) Ltd & Others v Partnership
Pacific Ltd
(1988) 20 FCR 540
paras 14-16.)
[115]
Canadian law is to similar effect. The ex parte litigant
must disclose all points of fact and law known to it which favour the
other
side (
United States of America v
Friedland
[1996] OJ No 4339 paras 26-27;
The
Commissioner of Competition v Labatt Brewing Company Ltd & Others
2008 FC 59
(CanLII) paras 22-25).
[116]
In my view the same standards apply to an ex parte
applicant in this country.
[117]
The affidavits of Ms Meissenheimer and Mr Dlulane
created the misleading impression that MSR had something to hide and
was thus
unjustifiably questioning whether Mr Dlulane was a duly
appointed inspector. That was not the case. The Magistrate could not
have
been expected to be familiar with the intricacies of
environmental legislation and of the recent introduction of the One
Environmental
System. The DEA should have fairly disclosed the
mandate issue, including MSR’s principal contentions as
disclosed in the
correspondence. The mandate issue was relevant not
only to MSR’s resistance to Mr Dlulane’s attempted
inspection but
more fundamentally to the question whether the DEA was
entitled to apply for the warrant.
[118]
The DEA’s non-disclosure is particularly egregious
in view of the respondents’ assertion in the present
proceedings
that the need to investigate the soundness of MSR’s
challenge and the complexities of the legislation was one of the main
reasons for the delay in applying for a warrant. The respondents must
have anticipated that MSR would challenge the warrant on
the very
basis it subsequently did. In the circumstances the DEA’s
failure even to alert the Magistrate to the point is baffling.
In
their heads of argument the respondents’ counsel said that it
had been unnecessary to ‘swamp the Magistrate with
highly
complex, and ultimately irrelevant, legal arguments about
jurisdiction’. This was not counsel’s best point.
Apart
from the fact that the Magistrate, unlike the inspectors, was a
judicial officer, and that it was for him and not the DEA
to decide
the issue, the issue was anything but irrelevant.
[119]
If the DEA had fairly disclosed the mandate issue, the
Magistrate might have decided the point against the DEA or might have
refused
to issue the warrant (except in relation to the dumping
charge) until the legal issue was determined by the High Court.
[120]
I must add that Mr Dlulane’s assertion before the
Magistrate that he had jurisdiction because he was responsible for
enforcing
the Coastal Act was calculated (I do not say deliberately)
to lead the Magistrate further astray. Only one of the five charges
concerned a contravention of the Coastal Act. Mr Dlulane’s
assertion would have created the impression in the Magistrate’s
mind that Mr Dlulane in law had jurisdiction over NEMA contraventions
provided they occurred in a coastal environment. That contention
had
not been advanced by Mr Dlulane in his correspondence with MSR (in
the correspondence he said he was authorised to investigate
contraventions of the Coastal Act and the Coastal Regulations) or by
the respondents’ counsel in the present litigation.
[121]
In my view, therefore, non-disclosure is a basis for
setting aside the warrant in respect of all the charges other than
the dumping
charge. I have considered whether I should exercise my
discretion against setting aside the warrant in relation to the
failing
cliff charge (cf
Thint
para
117). I do not think so. I regard the non-disclosure as substantial,
particularly in view of the inaccurate impression created
by Mr
Dlulane’s affidavit. Furthermore it would not be right to
exercise my discretion in the respondents’ favour without
finally deciding that national inspectors have the mandate to
investigate the failing cliff charge. I have explained why I am
reluctant to make a final decision on that question.
[122]
In respect of the dumping charge, there has never been a
suggestion by MSR that national inspectors do not have jurisdiction
to
investigate the alleged contravention. There was thus no legal
issue which needed to be drawn to the Magistrate’s attention
in
that regard.
Facts
relating specifically to the failing cliff complaint
[123]
MSR complains that the DEA failed to disclose MSR’s
views regarding the reasons for the cliff failure. The affidavits in
the
present case contain a good deal of material regarding the
reasons for the cliff failure. It is neither necessary nor possible
to resolve the disputes on the papers. I confine myself to what was
placed before the Magistrate and what could reasonably have
been
expected to be placed before him.
[124]
The affidavit of Ms Meissenheimer regarding the failing
cliff charge is extremely terse. She said it was clear from three
photographs
supposedly taken on dates in March 2012, July 2013 and
February 2016 that the cliff had collapsed. Mr Dlulane’s
affidavit
listed various ‘suspected illegal activities’,
being a verbatim extract from the FT document. These activities
included
‘
run-off
from the processing plant as a result of unauthorized processing
method changes resulting in erosion and cliff failure;
operating
within 10 m of the toe of the cliff in contravention of approval
conditions.’
[125]
In the FT document the activities just quoted were part
of a list of activities said to have been highlighted in previous
letters
sent to the DMR, DEA, DPWC and Municipality. The main purpose
of the FT document was to provide information about ‘further
transgressions’. One of these was headed ‘cliff failure’.
The author stated that, due to increased unauthorized
activities and
a refusal to implement mitigation measures to contain the increased
ponding of water and run-off from the site,
the cliff face had
experienced ‘further failure’. Several photographs were
included which were said to show uncontained
water and run-off. The
photographs showed that the failed cliff was located immediately
beneath the SCP site. While this could
be coincidental, it is a
factor to be taken into account when deciding whether there were
reasonable grounds for suspecting that
unauthorized activities at the
SCP site had contributed to the cliff failure.
[126]
Mr Hodes submitted that no regard should be had to the
FT document because it was hearsay and was thus not information on
oath such
as is contemplated by s 21(1)(a) of the CPA. Mr Paschke
responded by referring me to para 38 of
Powell
where Cameron JA said that the investigator unavoidably had to rely
on evidence on oath supplied to her by a witness who at that
stage
was not willing to come on record. Cameron JA’s approach is not
directly in point because there the witness had made
an affidavit but
was not willing to be identified. In the present case Ms
Meissenheimer did not have an affidavit from the author
of the FT
document. Nevertheless in
Powell
the
investigator’s assertions under oath, to the extent that they
relied on the anonymous deponent, were technically hearsay.
The
broader thrust of
Powell
is
captured in para 35 where Cameron JA approved a test for reasonable
suspicion as being one formed ‘on the basis of diverse
factors,
including facts and pieces of information falling short of fact, such
as allegations and rumours’. In
Van der
Merwe v Minister van
Justisie
en
ʹn Ander
1995
(2) SACR 471
(O) the court held that ‘information’ in
s 21 of the CPA included hearsay evidence (482h-485h and
486g-h).
[127]
The FT document was not self-evidently a piece of
baseless scandal-mongering. The text is well written and displays
some understanding
of the mining operation and environmental
legislation. Key allegations were supported by photographs. Ms
Meissenheimer believed
that the Google Earth images forming part of
her affidavit confirmed some of the allegations in the FT document.
In my view the
Magistrate was entitled to have regard to the FT
document in determining whether there were reasonable grounds for
suspecting that
the offences under investigation had been or were
being perpetrated.
[128]
The evidence in Ms Meissenheimer’s affidavit and
the FT document sufficed to establish a reasonable suspicion that the
cliff
had failed because of an unauthorized change in the mining
operations. What countervailing evidence was available to the DEA?
The
DEA had knowledge of the environmental authorisation granted to
MSR on 25 July 2012 and of the NEMA EMP approved at the same time.
The EMP recorded that it was evident, from the various sea-facing
slope failures observed along the coastline, that storm surf
is a
destabilising force undercutting the bases of the sea-facing slopes
and that this is more evident where the slopes comprise
reddish
orange sands rather than light grey or white sands. This was one of
the reasons for imposing a 10 m buffer zone between
mining operations
and the toe of the cliff. This information was repeated in the
amended Mining EMP submitted to DMR on 2 December
2014 and was
presumably also in the amended NEMA EMP which MSR submitted to the
DPWC but allowed to lapse.
[129]
In support of the original environmental authorisation
and NEMA EMP (and as an attachment to the application), MSR obtained
a geotechnical
report from Davies Lynn & Partners. This report
noted widespread evidence of undercutting of the upper portion of the
beach
profile and the bases of sea-facing slopes, the primary causal
factor being marine erosion.
[130]
The FT document, and Mr Dlulane’s repetition of
it, would have created the impression that MSR’s illegal mining
within
the 10 m buffer zone had contributed to the cliff failure. The
DEA did not disclose, in its application to the Magistrate, that
the
provincial inspectors’ inspections of 16 July 2014 and 24
February 2015 established that no mining had occurred in the
10 m
buffer zone (the second inspection revealed alleged mining in a
conservation area but this is unrelated to the cliff).
[131]
Although the DEA’s application disclosed that an
amended EMP was approved by the DMR on 14 April 2015, the application
did
not disclose that one of the amendments thereby approved was the
locating of the PBCs on the SCP site.
[132]
The failing cliff complaint was not one of the
complaints raised in Mr Dlulane’s correspondence with MSR in
April/May 2015.
MSR thus had no occasion in that correspondence to
deal with an assertion that it had unlawfully and culpably caused the
cliff
to fail. However on 24 June 2015 MSR wrote to the DMR, noting
with concern the continued gradual degradation of the cliff face in
front of the processing area (this suggests that the collapse was not
complete) and proposing ways of rehabilitating the area.
MSR stated
that the ‘gradual degradation and collapse’ was
‘
partially,
as a result of the diamond mining that has occurred for more than 50
years on the area and, partially, natural condition
of the very rough
West Coast’.
(The
area of MSR’s sand mining rights overlay a diamond concession
held by the Trans Hex which was mining for diamondiferous
gravels in
the area. According to MSR, Trans Hex is permitted to mine within 5 m
of the cliff toe.)
[133]
In October 2015 MSR submitted to the DMR a report on the
cliff failure authored by Mr A du Toit of MRC. In this report Mr du
Toit
noted the historical failure of cliffs in this area by natural
erosion and undercutting by the sea. He said that the main reason
that the cliffs in the vicinity of the Tormin mine are unstable is
because they consist of unconsolidated young marine, alluvial
and
erosional sediments. They were subject to failure before MSR began
mining in the area. The main reason, in his view, for failures
in
this area was the undercutting of the cliff face by wave activity.
[134]
There was a dispute in this court regarding Mr du Toit’s
qualifications and independence. The respondents submitted a
rebutting
opinion from Mr JH van der Waals, a soil scientist. The
question is not, however, which of the expert opinions is to be
preferred;
it would be impossible on the papers to do so. What is
important is that Mr du Toit’s report was compiled and
submitted to
the DMR about 11 months before Ms Meissenheimer applied
to the Magistrate for the warrant. Mr van der Waals, by contrast, did
his
report in December 2016 for purposes of the current litigation.
It was not information available to the DEA when it applied for
the
warrant.
[135]
The respondents do not deny that MSR sent to the DMR the
letter of 24 June 2015 or that MSR submitted Mr du Toit’s
report
to the DMR in October 2015. The respondents’ principal
deponent, Mr Walters, describes the extensive interaction which
occurred
between the DEA, the DMR, the DPWC and the Municipality over
the period June 2015 to September 2016. Mining inspectors from the
DMR were intended to form part of the search contingent, only
withdrawing on the morning it was executed. Ms Meissenheimer had
knowledge of the amended EMP approved by the DMR on 14 April 2015.
The respondents do not say that Ms Meissenheimer and Mr Dlulane
did
not have knowledge of the letter of 24 June 2015 or of Mr du Toit’s
report of October 2015. Since para 43.4 of MSR’s
founding
affidavit referred specifically to Mr du Toit’s report in the
context of an alleged non-disclosure in respect of
the failing cliff
charge, I would have expected – if Ms Meissenheimer and Mr
Dlulane were unaware of the document –
that the respondents
would have said so.
[136]
The question is whether the DEA should have disclosed
the above matters in the ex parte application. The DEA only needed to
satisfy
the Magistrate that there was a reasonable suspicion that the
failing cliff offence had been committed. If an investigator has
knowledge of compelling or irrefutable facts, the disclosure of which
might reveal his suspicion to be unreasonable, the investigator
must
clearly disclose such facts in his application. Here, however,
disclosure of MSR’s position would not have revealed
the DEA’s
suspicion as being unreasonable. The Magistrate would not have been
able, on the papers, to determine the true
cause of the cliff
failure, any more than I would be able to do on the fuller papers now
before me.
[137]
In
Cometal-Mometal
SARL v Corlana
Enterprises (Pty)
Ltd
1981 (2) SA 412
(W) Margo J, while
finding that there was a non-disclosure, exercised his discretion
against setting aside an ex parte attachment
order since the
applicant only needed to make out a prima facie case, a requirement
which could be met even if the balance of probabilities
on the papers
was against the applicant. In
Rosenberg &
Another v Mbanga & Others (
Azaminle
Liquor (Pty) Ltd Intervening)
1992
(4) SA 331
(E) Van Rensburg J in similar circumstances seems to have
been of the view that there was no duty to disclose the facts in
question
(at 336F-337G). I would not wish to dilute the duty of a
litigant in ex parte proceedings to make fair disclosure. I think the
DEA should fairly have disclosed MSR’s view on the causes of
the cliff failure. However, for reasons similar to those mentioned
in
the preceding cases, I do not think in the present case that the
non-disclosure should result in the setting aside of the warrant.
Facts
relating specifically to the dumping charge
[138]
As with the failing cliff charge, MSR complains that the
DEA failed to disclose MSR’s views on the dumping charge. The
dumping
charge was not foreshadowed in the correspondence of
April/May 2015. I have not been able to find any relevant documents
setting
out MSR’s views on the charge. I thus do not think that
this particular criticism is justified.
Reasonable
grounds for suspicion in relation to the dumping charge
[139]
However the
argument on the dumping charge went wider than the non-disclosure
complaint. MSR’s counsel submitted in their
heads of argument
that the evidence placed before the Magistrate was too confused and
vague to constitute reasonable grounds for
suspecting that MSR was
dumping at sea in violation of the Coastal Act. Although the
respondents’ counsel objected to this
line of argument on the
basis that it was not one of the grounds of review contained in the
founding papers, the matter was fully
traversed by both sides in
written and oral argument.
[5]
Since MSR’s contention is a question of law to be judged with
reference solely to the content of the application before the
Magistrate, I do not think it would be right to preclude reliance
thereon. A point of law may be raised for the first time even
on
appeal if the facts upon which the point depends are common cause or
clear beyond doubt from the record and there is no ground
for
thinking that further or other evidence would have been produced had
the point been raised at the outset (
Paddock
Motors (Pty) Ltd v Igesund
1976
(3) SA 16
(A) at 23D-H;
Quartermark
Investments Pty Ltd v Mkhwanazi & Another
2014
(3) SA 96
(SCA) para 20). The same applies a fortiori in motion
proceedings before a court of first instance (see, eg,
Stiegelmeyer
Africa (Pty) Ltd v National Treasury of South Africa & Others
[2015] 2 All SA 110
(WCC) paras 48-53).
[140]
The original EMP required MSR to return tailings from
the SCP to the beach by ADTs. Excavators would shovel the tailings
back into
the mined-out area and the beach would be restored by tidal
action. The amended Mining EMP approved on 14 April 2015 authorised
MSR to return the tailings to the beach by pipeline rather than ADTs.
[141]
There appears to have been a period prior to 14 April
2015 during which MSR returned tailings to the beach by pipeline in
contravention
of the original EMP. This, however, is not one of the
five charges. In regard to the tailings, the charge was one of
dumping at
sea without a permit. The alleged contravention of
s 70(1)(e) of the Coastal Act is unrelated to the method by
which the tailings
are dumped.
[142]
It is unclear
whether the amended EMP provides for the tailings to be pumped to the
beach or into the sea. The application for the
amended NEMA EMP (the
one which MSR allowed to lapse) said that the tailings would be
pumped to the beach.
[6]
The
amended Mining EMP speaks variously of the tailings being pumped to
the beach
[7]
, directly into the
sea
[8]
or possibly both
[9]
.
The amended EMP still makes reference to the backfilling of mined-out
areas with excavators,
[10]
which would make sense only if the tailings were pumped to the beach.
[143]
Ms Meissenheimer’s affidavit stated that
photographs forming part of the FT document revealed that tailings
were being disposed
of into the sea. It is impossible to see this
from the Google Earth image included in her affidavit and which she
said confirmed
the allegation.
[144]
The allegation made in the FT document is that MSR began
pumping tailings to the beach prior to approval of the amended EMP.
The
FT document stated that the s 102 amendment application ‘has
not yet been approved’. While that may have been true
when the
FT document was compiled (presumably before 14 April 2015), it was
not true when the DEA applied to the Magistrate for
the warrant in
September 2016. Although Ms Meissenheimer said that the DMR had
approved an EMP on 14 April 2015, the Magistrate
could not have known
that the EMP of 14 April 2015 constituted the granting of the s 102
application. The Magistrate would
have been under the impression that
the pumping of tailings was currently unapproved.
[145]
More importantly, the FT document did not support Ms
Meissenheimer’s assertion that MSR was dumping the tailings in
the sea
(as that term is commonly understood); the FT document said
that the tailings were being pumped to the beach.
[146]
Mr Paschke pointed out that the word ‘sea’
is defined in the Coastal Act as including land regularly submerged
by seawater.
This would include the intertidal zone. So, in the
language of the Coastal Act, tailings returned to the intertidal zone
are disposed
of in the ‘sea’ even though in common
parlance the operation would appear to be a disposal of tailings on
the beach.
He said that one could observe from the Google Earth image
included in Ms Meissenheimer’s affidavit that there were
tailings
in the intertidal zone. Without further information (which
Ms Meissenheimer did not furnish), I do not accept that one can make
this deduction. It would not surprise me, though, if it were true.
MSR was authorised to conduct mining in the intertidal zone.
It could
construct sea walls to protect the mining pit. MSR was required by
the NEMA EMP and the Mining EMP to return tailings
to the beach where
they would be placed in the mined-out area. So far from being a bad
thing, this was aimed at allowing the beach
to be restored to its
natural condition through tidal action.
[147]
The FT document stated that, although the tailings were
required to be returned to the mined-out area, MSR was in fact
returning
them to only one area of the beach. This may be a reference
to MSR’s attempt to rehabilitate the failed cliff by placing
tailings at the foot of the cliff. (There are photographs of this in
the FT document. In its letter to the DMR of 24 June 2015,
MSR
proposed that tailings be pumped directly over the failed area to
assist in re-establishing the slope.) However this was not
the charge
against MSR. There was no evidence before the Magistrate that the
beach at the toe of the cliff forms part of the ‘sea’
as
defined in the Coastal Act.
[148]
There thus seems to me to have been hopeless confusion
in the DEA’s application as to what was being alleged. The FT
document,
which was Ms Meissenheimer’s professed source, did
not support her allegation of tailings being pumped into the sea. The
FT document may have been claiming that MSR was not returning the
tailings to the mined-out area but was instead pumping them to
the
foot of the failed cliff. While that may have violated the original
and amended EMP, it did not provide evidence that the tailings
were
being disposed of on a part of the beach qualifying as the ‘sea’
as defined in the Coastal Act.
[149]
If Ms Meissenheimer intended to allege that the tailings
were being returned to the mined-out area in the intertidal zone, the
Magistrate
was at least entitled to know that this is precisely what
MSR was required to do by the EMPs approved by the DMR and DPWC
respectively.
It is true that MSR might still strictly have needed a
dumping permit from the Environment Minister in terms of s 71 of
the
Coastal Act. The NEMA environmental authorisation stated that the
authorisation did not exempt the holder from complying with any
other
statutory requirements applicable to the undertaking of the listed
activities. Nevertheless the contravention would almost
certainly
have been unwitting and somewhat technical. MSR would have had no
reason to think that the Environment Minister would
refuse to
authorise the return of the tailings to mined-out areas in
circumstances where the DMR and DPWC had stipulated this modus
operandi for sound environmental reasons.
[150]
Furthermore I very much doubt that the DEA would have
applied for a search warrant if MSR’s only misdemeanour were
its failure
to apply for a dumping permit so that it could give
effect to its obligations under the EMPs. A search warrant would
hardly be
needed to make good a charge for the technical infraction.
As I have said, the EMPs required MSR to return the tailings to the
mined-out area. The EMPs make clear that most of the mining was to
take place in the intertidal zone. Since MSR has been mining
in this
way for more than two years, the DEA could safely assume that MSR has
returned tailings into the intertidal zone.
[151]
In the light of the confusion, I do not think the
application to the Magistrate established reasonable grounds for
suspecting that
MSR was guilty of the dumping charge. And if,
contrary to my view, the DEA’s application is to be understood
as alleging
dumping at sea by returning the tailings to the mined-out
area in the intertidal zone, there was a non-disclosure that this is
precisely what the EMPs required. If the facts in that regard had
been fairly placed before the Magistrate, he may well have concluded
that a search warrant was not needed.
[152]
I have assumed thus far that the return of tailings to
the intertidal zone qualifies as ‘dumping at sea’. There
was
some argument on this question. The full definition of ‘dumping
at sea’ reads thus:
‘ “
dumping
at sea” means –
(a) any
deliberate disposal into the sea of any waste or material other than
operational waste from a vessel, aircraft, platform
or other man-made
structure at sea;
(b) any
deliberate disposal into the sea of a vessel, aircraft, platform or
other man-made structure at sea;
(c) any
storage of any waste or other material on or in the seabed, its
subsoil or substrata; or
(d) any
abandonment or toppling at site of a platform or other structure at
sea, for the sole purpose of deliberate disposal,
but “dumping
at sea” does not include –
(i) the
lawful disposal at sea through sea out-fall pipelines of any waste or
other material generated on land;
(ii) the
lawful depositing of any substance or placing or abandoning of
anything in the sea for a purpose other than mere disposal
of it; or
(iii) disposing
of or storing in the sea any tailings or other material from the bed
or subsoil of coastal waters generated
by the lawful exploration,
exploitation and associated off-shore processing of mineral resources
from the bed, subsoil or substrata
of the sea.’
[153]
The definition of ‘waste’ should also be
noted:
‘”
waste”
means any substance, whether or not that substance can be re-used,
recycled or recovered –
(i) that
is surplus, unwanted, rejected, discarded, abandoned or disposed of;
(ii) that
the generator has no further use of, for the purposes of production,
reprocessing or consumption; and
(iii) that
is discharged or deposited in a manner that may detrimentally impact
on the environment’.
[154]
MSR submitted that the tailings are not ‘waste’
as defined in the Coastal Act. The tailings comprise sand (quartz
grains
– ie beach sand without the heavy minerals) and
seawater. There is no foreign matter in the tailings. The word ‘and’
between paras (ii) and (iii) of the definition shows that the
criteria are cumulative. The tailings satisfy paras (i) and (ii).
Para (iii) requires that the discharge or depositing of the tailings
take place ‘in a manner that may detrimentally impact
on the
environment’. If the tailings are being discharged into the
mined-out areas in the intertidal zone in accordance with
the EMP, it
does not seem plausible to say that they are being discharged in a
manner that may detrimentally impact on the environment.
On the
contrary, the discharge of the tailings into the intertidal zone is
intended to restore the beach to its natural state.
If the tailings
are being pumped directly into the sea, this may contravene the EMP
but it is difficult to see how it is an action
that could
detrimentally affect the environment. The dumping of tailings on the
beach further inland from the high-water mark might
be detrimental to
the environment but would not constitute ‘dumping at sea’.
The evidence before the Magistrate did
not come close to raising a
suspicion that the tailings were being discharged into the intertidal
zone or sea in a manner that
detrimentally affected the environment.
[155]
However para (a) of the definition of ‘dumping at
sea’ refers to the disposal into the sea of any waste ‘or
material’.
The offence in s 79(1)(e) likewise refers to the
dumping of waste ‘or other material’ at sea. Contrary to
MSR’s
argument, I see no escape from the conclusion that the
tailings constitute ‘other material’, particularly when
regard
is had to s 71(3) which takes for granted that ‘dredged
material’ and ‘inert, inorganic geological material’
may fall within the definition of ‘waste or other material’.
[156]
This takes one to the question whether the tailings,
being ‘other material’, are being ‘dumped at sea’.
The only potentially applicable paragraph of the definition of
‘dumping at sea’ is para (a). The concluding part of
this
paragraph (‘from a vessel…’) applies only to
‘operational waste’ (itself a defined term), as
is
apparent from the proviso at the end of the definition of ‘dumping
at sea’. Despite the formatting of the proviso
(‘but
“dumping at sea” does not include… ‘), the
proviso applies to the whole of what goes before,
not only to para
(d). Again this is clear from the content of the proviso.
[157]
Proviso (iii) does not apply to MSR because its
processing does not occur offshore. Proviso (i) could arguably apply.
The expression
‘sea out-fall pipeline’ is not defined.
The expression could arguably cover the pipeline through which MSR
pumps tailings
to the intertidal zone. The use of such a pipeline
arguably became lawful as from 15 April 2015. Proviso (ii) might well
apply.
It is fairly arguable that the tailings are not returned to
the mined-out area for the sole purpose of disposal. They are
specifically
returned to that area to rehabilitate the beach. If
nothing other than disposal were involved, MSR might find it more
convenient
to dispose of the tailings elsewhere. (Different
considerations might apply if the tailings were being pumped directly
into the
ocean without regard to the rehabilitation of the beach.)
[158]
The above analysis would tend to support a conclusion
that in law no ‘dumping at sea’ has occurred. However,
and because
the precise facts alleged by the DEA are unclear, it is
preferable that I express no final opinion on this question.
The
jetty charge, increased footprint charge and road charge
[159]
Since I have found that the national inspectors did not
have the mandate to apply for a search warrant in respect of these
charges,
it is not strictly necessary to consider MSR’s
complaint of non-disclosure relating to them but I shall do so in
case another
court should disagree with my conclusion on the mandate
attack.
DMR’s
letter of 21 April 2015
[160]
In respect of all three charges, MSR says that the DEA
should have disclosed to the Magistrate that, following an inspection
by
mineral inspectors on 20 May 2015, the DMR notified MSR on 21 May
2015 that the activities in question were lawful. (In fact, the
DMR’s
letter dealt only with the jetty and increased footprint.) MSR also
complains that the DEA failed to disclose that
the increased
footprint and road were approved by the DMR on 14 April 2015 as part
of the amended Mining EMP.
[161]
In her letter of 21 May 2015, the DMR’s Ms Kunene
expressed the view that MSR’s environmental authorisation of 25
July
2012 entitled MSR to do anything falling within the limits of
the promulgated listed activities which triggered the need for an
environmental authorisation. One of the promulgated listed activities
was construction or earthmoving activities in the sea in
respect
inter alia of fixed jetties, embankments and stabilising walls.
Another of the promulgated listed activities was the development
of
an area of 20 ha or more. Ms Kunene’s view was that the
environmental authorisation entitled MSR to construct jetties
and sea
walls at will and to develop up to 20 ha at will.
[162]
Ms Kunene’s view is wrong. In the first part of
the environmental authorisation letter the DPWC quoted the
promulgated listed
activities relevant to MSR’s proposed
operations. The letter then set out the operations of MSR which
triggered the need
for authorisation. It was this setting out of the
operations, read together with the EMP (which MSR was obliged to
implement as
a condition of the authorisation), which determined what
MSR was authorised to do.
[163]
In my opinion, Ms Kunene’s view was so patently
wrong that the letter did not constitute a material fact which needed
to be
disclosed to the Magistrate. MSR’s counsel did not seek
to persuade me that Ms Kunene’s view was defensible. Despite
a
faint suggestion to the contrary from MSR, Ms Kunene’s
expression of opinion is not an administrative action having legal
effect until set aside. She was not exercising a statutory power to
issue rulings.
The
DMR’s approval of amended Mining EMP
[164]
The amended Mining EMP approved by the DMR on 14 April
2015 authorised inter alia the increased footprint and the
construction and
widening of roads. MSR complains that the DEA failed
to disclose this to the Magistrate. Although Ms Meissenheimer
mentioned that
the DMR approved an EMP on 14 April 2015, she did not
disclose that the amended EMP dealt with, and purportedly
legitimised, two
of the five contraventions asserted by Ms
Meissenheimer. (The amended Mining EMP did not mention the jetty and
its approval could
thus not have legitimised it.)
[165]
This alleged
non-disclosure requires a brief consideration of the legal effect of
the DMR’s approval of 14 April 2015. MSR
contended, and the
respondents’ counsel accepted, that, by virtue of the
transitional provisions in s 12(7) of Act 62
of 2008 read with
regulation 54 of the 2014 EIA Regulations, the DMR was empowered to
determine MSR’s pending application
for an amendment of its
Mining EMP despite the repeal of s 39 of the Mining Act. I am
somewhat doubtful that the transitional
provisions had this
effect
[11]
but for present
purposes I shall assume it is correct.
[166]
Mr Paschke’s
main submission was that the amended Mining EMP, assuming it to be a
deemed NEMA EMP, was insufficient to legitimise
MSR’s
activities. He argued that MSR required an amended or additional
environmental authorisation in terms of NEMA in order
to construct
the jetty, construct roads and extend the SCP site. Although the
Mining Minister may have become the competent authority
to grant the
environmental authorisation, the DMR’s approval of the amended
Mining EMP did not simultaneously constitute
an environmental
authorisation. Para 20 of the DMR’s approval letter of 14 April
2015 expressly stated that any NEMA listed
activities required
approval from the competent authority before commencement. The
process for obtaining an environmental authorisation
is more rigorous
than for an amendment of a Mining EMP. The DMR may well have assumed
that, in terms of the relevant transitional
provisions, MSR was
following a parallel process to obtain an amendment of its
environmental authorisation. Indeed, the DMR was
told in the amended
mining EMP that MSR required an environmental authorisation in terms
of NEMA which would be finalised with
the DPWC in the near
future.
[12]
[167]
Mr Paschke also submitted that, because MSR had
unlawfully embarked on the activities in question without first
obtaining the requisite
environmental authorisation, the process for
obtaining ex post facto approval was the one set out in s 24G
rather than s 24.
[168]
The construction of the jetty (or groyne) falls within
activity 17 of the Listing Notice 1 of 2014. The clearing of more
than 1
ha of indigenous vegetation falls within activity 27 of the
said Listing Notice 1. The development of a road wider than 4 m with
a reserve less than 13,5 m is activity 4 in Listing Notice 3 of 2014.
[169]
I have already explained why I regard Ms Kunene’s
view in her letter of 21 May 2015 to be wrong. Although MSR’s
environmental
authorisation of 25 July 2012 was triggered because it
was undertaking, inter alia, activities falling within the scope of
previous
versions of listed activities similar in scope to activities
17 and 27 of Listing Notice 1 of 2014, the authorisation did not
permit
MSR to do whatever it liked within the scope of the
promulgated listed activities. A person who applies for an
environmental authorisation
to clear 2 ha of indigenous vegetation
self-evidently cannot proceed to clear 20 ha of indigenous vegetation
without obtaining
a further environmental authorisation. A person who
has been authorised to construct one road wider than 4 m
self-evidently cannot
proceed to develop five such roads.
[170]
In terms of NEMA, both an environmental authorisation
and an EMP may be amended. I was not fully addressed on the question
as to
when an amendment of an EMP will suffice but it seems to me
that the answer must lie in a proper appreciation of the function of
an EMP and of the reason for the more rigorous processes required for
environmental authorisations. In terms of s 24N, the
main
function of an EMP is to provide information on the proposed
management, mitigation, protection and remedial measures that
will be
undertaken to address the environmental impacts of the activities to
be undertaken. Although the EMP would identify the
activities to be
undertaken in order to provide the context for the measures proposed,
it is not the function of the EMP to determine
the activities which
the applicant is authorised to undertake. That must be determined
with reference to the environmental authorisation
read with the
application. Of course, one would expect the EMP accurately to set
out the scope of the activities for which the
applicant is seeking
authorisation since otherwise the EMP would not properly be
addressing the activities to be undertaken but
this does not mean
that it is the EMP itself which constitutes the environmental
authorisation.
[171]
The accurate definition of the scope of the activities
for which the applicant is seeking authorisation is important if the
impacts
of the activities are to be properly assessed in accordance
with the EIA Regulations. Self-evidently, the impact of clearing 20
ha of indigenous vegetation will be greater than clearing 2 ha and so
forth.
[172]
MSR’s counsel did not argue that, in terms of the
legislative regime prevailing prior to 8 December 2014 (which may
have remained
in force in respect of pending matters), the obtaining
of approvals under the Mining Act made it unnecessary for MSR to
obtain
environmental authorisation in terms of NEMA for any listed
activities which the mining company would be undertaking. That any
such suggestion would be unsound is clear from the judgment of the
Constitutional Court in
Maccsand (Pty) Ltd v
City of Cape Town & Others
2012 (4) SA
181
(CC).
[173]
It follows that, if MSR has undertaken listed activity
beyond the scope of the activities for which it obtained
authorisation in
2012, it required an amended or additional
environmental authorisation. And to the extent that it has undertaken
those activities
without obtaining environmental authorisation, the
process it would need to follow is that laid down in s 24G
rather than
s 24.
[174]
Insofar as the jetty charge is concerned, MSR’s
environmental authorisation permitted the excavation of sand in the
intertidal
zone. To facilitate such excavation, MSR was authorised to
construct temporary sea walls using beach sand from the area to be
mined.
The purpose of the sea walls (or berms) was to prevent the
mining pit from being flooded. The sea walls were to be flattened by
the excavators after the area had been mined. This appears from the
authorisation letter and more fully from the EMP.
[175]
The text and photographs in the FT document show that
the jetty has been constructed with boulders. According to the FT
document
(again supported by photographs), MSR has trucked the
boulders to Tormin from a decommissioned mine about 70 km away. The
FT document
states that the purpose of the jetty is unclear. To my
eye, it is not part of a structure to prevent the ocean from entering
a
mining pit. MSR’s environmental authorisation and EMP did not
authorise a structure made from boulders or a structure for
a purpose
other than temporarily protecting a mining pit.
[176]
In my view, therefore, MSR required a further
environmental authorisation to construct the jetty. In any event, the
amended Mining
EMP approved on 14 April 2015 did not purport to
authorise the construction of the jetty.
[177]
Insofar as the
expanded footprint charge is concerned, the environmental
authorisation does not specify the dimensions of the SCP
site.
However there is no reason to doubt that the authorisation which MSR
sought was consistent with the description of its activities
in the
EMP. The EMP provided that the SCP and supporting infrastructure and
facilities would be in a fenced-off area covering 2,72
ha.
[13]
Because the SCP site became congested when the PBCs were moved there
and when the GSPs were installed, MSR began to expand the
site. The
expansion of the site is apparent from photographs included in the FT
document and in the Google Earth images forming
part of Ms
Meissenheimer’s affidavit. The amended Mining EMP sought
approval for an expansion of an additional 7,18 ha.
[14]
The inspection by the provincial inspectors on 24 February 2015
established that by that date the SCP site had already been expanded
by 3,8 ha.
[178]
In my view, the clearing of the vegetation around the
original SCP site, to the extent that it exceeded 1 ha, required a
further
environmental authorisation. The approval of the amended
Mining EMP did not on its own suffice.
[179]
In regard to the road charge, the construction and
widening of roads was not a listed activity for which MSR needed
environmental
authorisation in 2012. The environmental authorisation
recorded that MSR would be using an existing gravel farm road for
access
to the mine and existing internal access roads for access to
the beach. These roads could be upgraded to improve their condition
and were to undergo routine maintenance.
[180]
There can thus be no doubt that MSR required an
environmental authorisation if any of the road construction or road
widening which
it later undertook fell within the scope of the listed
activities. Whether MSR did in fact undertake road construction or
road
widening within the scope of the listed activities is something
I shall consider separately under a later heading.
[181]
I think this analysis of the need for amended or
additional environmental authorisations is sufficiently
straightforward that it
was unnecessary for the DEA to disclose to
the Magistrate that the amended Mining EMP approved on 14 April 2015
accommodated the
expanded SCP site and the expansion of roads,
particularly when the DMR’s approval letter specifically stated
that the approval
of the amended EMP did not exempt MSR from
obtaining any necessary environmental authorisations. There was no
plausible case to
be made that the approval of the amended Mining EMP
in itself legitimised the activities in question prospectively.
[182]
It is thus unnecessary to consider the further question
whether, if the amended Mining EMP legitimised the activities in
question
prospectively, the non-disclosure of the terms of the
amended Mining EMP was material, having regard to the fact that MSR
would
still reasonably be suspected of having committed offences by
embarking on those activities prior to 14 April 2015.
The
jetty and expanded footprint charges – reasonable grounds for
suspicion
[183]
What I have said in the previous section of this
judgment suffices to deal with MSR’s contention that the DEA’s
application
did not establish reasonable grounds for suspecting that
MSR had perpetrated and was perpetrating the jetty and expanded
footprint
offences.
The
road charge – reasonable grounds for suspicion
[184]
The arguments in
respect of this charge went beyond the alleged non-disclosure,
focusing also on whether the material before the
Magistrate
established reasonable grounds for suspecting that the offence in
question had been or was being committed. To some
extent, and as will
appear, this is related to MSR’s hearsay complaint. Since the
adequacy of the material before the Magistrate
is a legal question, I
think it is open to MSR to argue the point. Once again, the
respondents dealt fully with it in their heads
of argument.
[15]
[185]
As I have mentioned, the construction of roads was
not a listed activity for which MSR needed or obtained environmental
authorisation
in 2012 because it was going to use existing roads.
[186]
The road charge was stated by Ms Meissenheimer to be
based on the alleged construction of a road wider than 4 m with a
reserve of
less than 13,5 m (activity 4 in Listing Notice 3 of 2014).
Because MSR did not have environmental authorisation for this listed
activity, MSR was said to have contravened s 49A(1)(a) of NEMA.
[187]
There were no photographs or text in Ms Meissenheimer’s
affidavit to support this assertion. Mr Dlulane said nothing about
the construction of a road. He merely repeated, as one of the
previous complaints recorded in the FT document, the alleged
unauthorized
use of (existing) roads.
[188]
The text of the FT document says nothing about the
construction of a new road. The only reference to a new road is in
the images
of unidentified provenance which were attached to Ms
Meissenheimer’s affidavit after the FT document. Although I
have rejected
MSR’s hearsay complaint in regard to the FT
document, it is a stretch too far to treat these unidentified
photographs as
probative material before the Magistrate.
[189]
If the unidentified photographs and their captions are
rejected as having probative value, there was nothing before the
Magistrate
to support the assertion that MSR had constructed a new
road wider than 4 m. If I am wrong in treating the unidentified
photographs
as inadmissible, the only relevant photographs are at
pages 34 and 35 of the rule 53 record. Page 35 consists of two images
beneath
the caption ‘Haul Road Expansion’. The alleged
expansion is highlighted in red. Page 36 contains a single image
beneath
the caption ‘Unapproved Haul Road Expansion’.
There is a road highlighted in green with the caption ‘approved
haul road’ and another road highlighted in red with the caption
‘new haul road not approved’.
[190]
The road expansion
supposedly shown at page 34 is not the construction of a new road but
the alleged widening of an existing road.
Ms Meissenheimer’s
allegation, however, was not one of an unlawful widening of a road
but the unlawful construction of a
road. The widening of an existing
road by more than 4 m is a separate listed activity in Listing Notice
3 but that was not the
charge. In any event, Mr Paschke realistically
acknowledged that one cannot tell, from the images on page 34, that
an existing
road has been widened (there are no ‘before’
and ‘after’ images) or, if it has, that it has been
widened
by more than 4 m. In MSR’s application to amend its
Mining EMP, MSR stated that that the existing haul road was 8 m wide,
which posed safety issues due to the size of the haul trucks. MSR
said it was imperative for the road to be widened. It was recorded
that the DMR itself had requested the widening of the road to 12
m.
[16]
This was subsequently
approved by the DMR on 14 April 2015. It will be recalled that during
their inspection of 24 February 2015
the provincial inspectors
ascertained that a road had been widened by 4 m. Accordingly, and
even if one goes beyond the material
which was before the Magistrate,
it is by no means apparent that MSR widened the road by more than
4 m.
[191]
In regard to the new haul road supposedly depicted at
page 35, one cannot tell, just by looking at the photograph, that the
road
in question is wider than 4 m. The caption to the photograph
does not say so.
[192]
In my view, therefore, the evidence before the
Magistrate did not establish reasonable grounds for suspecting that
MSR had committed
the alleged offence of constructing a road wider
than 4 m.
No
need for a warrant
[193]
MSR attacked the warrant on the ground that it was
implicit in s 21 of the CPA that a warrant had to be necessary
in the sense
that it was reasonable for the investigator to seek a
search warrant rather than employing other less invasive means (
Thint
para 126). A warrant was said to have been
unnecessary because MSR was not refusing access to inspectors but
merely challenging
Mr Dlulane’s mandate.
[194]
I do not think that this criticism is sound. If Mr
Dlulane and other national inspectors were in law entitled to conduct
an inspection,
it was no answer for MSR to say that, although the
company refused to give access to national inspectors, it was willing
to give
access to mining inspectors. If the matter was within the
national inspectors’ mandate, they were not obliged to defer to
the mining inspectors.
[195]
Mr Paschke submitted that an ordinary NEMA inspection,
whether by national inspectors or mining inspectors, would in any
event not
have been permissible because in terms of s 31K
warrantless inspections are only permissible in the case of routine
inspections.
What the investigators wished to undertake in September
2016 was a targeted search. This contention is sound. The possible
need
to distinguish between routine regulatory inspections and
targeted inspections was discussed in
Magajane
v Chairperson, Northwest Gambling Board & Others
[2006] ZACC 8
;
2006
(5) SA 250
(CC),
Gaertner & Others v
Minister of Finance & Others
2014 (1) SA
442
(CC) and
Estate Agency Affairs Board v
Auction Alliance (Pty) Ltd & Others
2014
(3) SA 106
(CC) in the context of determining whether various
statutory provisions were unconstitutional and in circumstances where
the legislation
itself did not draw the distinction. In the case of
NEMA, s 31K in express terms refers to routine inspections. An
inspection to
search for evidence in support of suspected criminality
is not a routine inspection.
[196]
MSR’s counsel submitted that a warrant was not
needed because one was not dealing with evidence that could
‘disappear’
– the failed cliff, the roads, the
expanded footprint. There are two answers to that submission.
Firstly, the investigators
needed access to the site to ascertain
more precisely the dimensions and physical characteristics of these
features. Second, there
were documents which might be relevant to the
suspected offences.
[197]
During argument it was suggested that a warrant was not
reasonably required because the physical features of the mining area
could
have been assessed aerially (by drones) or from the sea (in
boats). Because this complaint was not raised in the founding papers,
the respondents did not have the opportunity to explain why these
other methods were not reasonable alternatives. In any event,
the
purpose of the search was not only to assess the physical features of
the site but to investigate questions of timing and causation
by
examining documents. For example, in relation to the failing cliff
charge it would not be unreasonable to believe that minutes
and
internal reports might record the process of collapse and link such
collapse to operational events and mishaps.
[198]
Insofar as the increased footprint charge is concerned,
I must say that there appears to me to have been little justification
for
resorting to a search warrant. GCS told the provincial inspector,
Ms Schippers, on 23 October 2014 that the SCP site had already
been
expanded by 1,3 ha. The provincial inspectors ascertained during
their inspection of 24 February 2015 that the SCP site had
been
expanded by about 3.8 ha. The amended Mining EMP was approved on the
basis that this expansion was necessary. It is difficult
to know what
more evidence the DEA needed to establish that the footprint had been
expanded prior to the approval of the amended
EMP. However, this was
not one of the criticisms advanced by MSR.
The
terms of the warrant
[199]
MSR said that the warrant was not ‘reasonably
intelligible’. MSR submitted that the warrant had to be
assessed as a
self-standing document without reference to the
affidavits placed before the Magistrate. This is generally correct
(
Thint
paras 158-162
where Langa CJ distinguished between the permissible and
impermissible use which could be made of extraneous material).
The
first charge
[200]
The first intelligibility complaint is that, in the
warrant, the first charge (which we know was intended to be the
failing cliff
charge) mentioned a contravention of s 49A(1)(e)
without any reference to the failure of the cliff. A warrant in terms
of
s 21 of the CPA must specify the offence under investigation (
Van
der Merwe
supra paras 43-57). This forms part
of the intelligibility principle. The ambit of the search authorised
by a warrant cannot be
properly ascertained without a reasonably
intelligible identification of the offence under investigation. A
lack of intelligibility
as to the crime under investigation cannot be
remedied by evidence showing that the subject of the search knew what
it was all
about (
Powell
paras
45-62).
[201]
In
Van der Merwe
the
warrant specified no offence at all. The same is true of
Powell
and the two early provincial decisions which
were leading authorities on this point in the pre-constitutional era
(
Herzfelder v
Attorney-General
1907
TS 403
and
Pullen
NO, Bartman NO & Orr NO v Waja
1929
TPD 838).
Here the first offence was mentioned after a fashion.
However s 49A(1)(e) can be contravened in an infinite variety of
ways.
Merely identifying the section would not tell the investigator
or the target that what could legitimately be searched for were
things connected with a suspected unlawful and culpable causing of a
collapse of the cliff.
[202]
Nevertheless it appears from
Thint
that identifying the statutory contravention
suffices (para 168). In that case the warrant listed the suspected
offences as corruption,
fraud, money laundering and tax offences in
contravention of various statutes without further particularity (see
at 21H-22B where
the relevant part of the warrant is quoted). Langa
CJ said that ‘this broad description of the scope of the
investigation’
was sufficient to satisfy the objective test of
reasonable intelligibility (para 169). He added that the applicants
were given
a copy of the supporting affidavit the day after the
search and would thus have been in a position to complain that any
particular
seized item fell beyond the objective scope of the search
(para 171), this being a permissible use of extraneous material. In
Powell
, by contrast,
the affidavit in support of the warrant was not made available to the
target (para 60).
[203]
Here the warrant
specified the statutory provision allegedly contravened. Even if
this, standing on its own, did not suffice, the
warrant stipulated
that the supporting affidavits had to be handed to any affected
person together with the warrant. The supporting
affidavits made it
clear that the s 49A(1)(e) contravention related to the cliff
failure. No other contravention of that provision
was mentioned in
the supporting affidavits. If the warrant had not mentioned
s 49A(1)(e) at all, MSR would not have known
that the Magistrate
had authorised an investigation of a contravention of that section.
The fact that such a contravention was
mentioned in the supporting
affidavits would not have taken the matter further. But where the
Magistrate has mentioned a specific
section, I think regard can be
had to the supporting affidavits, which were to be delivered together
with the warrant, for the
purpose of identifying more specifically
the contravention which the Magistrate had in mind.
[17]
Electronic
data
[204]
The authority conferred by the warrant in regard to the
searching and copying of electronic data was said to be partly
incomprehensible.
I need say no more than that I disagree and that in
any event the investigators did not act on this part of the warrant.
[205]
In argument MSR’s counsel submitted that some of
the other items which the investigator was authorised to search for
suffered
from overbreadth. Apart from the fact that these criticisms
were not raised in the founding papers, I think it was reasonably
obvious
that documents of the broad kind stipulated could only be
taken to the extent that they were connected with one or more of the
five charges. The DEA would not have known in advance which precise
documents would contain references relevant to the charges.
No
named suspect
[206]
There was a complaint that the warrant failed to name
the suspected offender (cf
Van der Merwe
para
55(f)). This complaint lacks merit. It is clear from the warrant as a
whole that the suspected offender was the person conducting
the
mining operations, ie MSR. And para 3 of Ms Meissenheimer’s
supporting affidavit placed this beyond doubt.
Warrant
ultra vires in relation to photographs, measurements and samples
[207]
The warrant authorised the investigators to take
photographs, samples and measurements. MSR complained that this was
outside the
scope of s 21 of the CPA and thus ultra vires.
[208]
A sample (eg a
soil sample) is within the wide meaning of the word ‘anything’.
In regard to photographs and measurements,
it would be strange if
s 21 permitted the more extreme invasion of physically removing
a corporeal object while prohibiting
the less extreme invasion of
simply ascertaining the characteristics of the object in situ by
measuring and photographing it, particularly
where the object is not
capable of being physically removed (eg a failed cliff, a road). It
would seem to be a case of the greater
including the lesser.
[18]
Although Mr Hodes initially supported this complaint in argument, I
understood him on reflection to accept that the measuring and
photographing of physical features must be within the scope of s 21.
Magistrate’s
failure to apply his mind?
[209]
In their heads of argument MSR’s counsel submitted
that, in view of the limited time the Magistrate had to consider the
application
and his failure to provide reasons in response to the
review application, one could conclude that he had failed to exercise
his
discretion judicially in issuing the warrant. This is a factual
question. MSR did not allege that the Magistrate failed to apply
his
mind properly to the matter. The Magistrate was not called upon to
respond to such criticism. I thus do not think that this
line of
argument is open to MSR.
The
execution of the warrant
[210]
The execution of the warrant was attacked on the basis
of the participation of unauthorized officials. I have already dealt
with
the facts. There is no substance in the complaint, even though
the use of such a large contingent was rather heavy-handed. The one
unnamed police officer who accompanied the search team did not
participate in the search. In any event a search is not rendered
unlawful because a person not named in the warrant assists the named
officer provided the named officer remains in control of the
operation (
Goqwana
v Minister of Safety and Security & Others
2016
(1) SACR 384
(SCA) para 25; cf
R v Strachan
1988 CanLII 25
(SCC) paras 23-29).
The
declaratory relief
[211]
MSR’s counsel said that, if I were to decide the
mandate question in the context of the validity of the warrant, MSR
did not
press for a declaratory order. The declaratory relief was
intended to resolve the mandate question if the court should set
aside
the warrant on other grounds.
[212]
In the circumstances it is unnecessary to say anything
more about the declaratory relief claimed (which was admittedly
overbroad)
or the conditional counter-application which it prompted.
Summary
thus far
[213]
It is convenient to summarise the conclusions I have
reached:
(a) The
warrant is invalid, insofar as it relates to the jetty charge, the
increased footprint charge and the road charge,
because the
investigation of those charges was not within the mandate of the
national inspectors.
(b) The
warrant is invalid, insofar as it relates to the above three charges
and the failing cliff charge, because the
DEA failed to disclose the
legislative changes of 8 December 2014 and MSR’s position on
the mandate issue.
(c) The
warrant is invalid, insofar as it relates to the dumping charge,
because the evidence presented to the Magistrate
was too confusing
and unclear to constitute reasonable grounds for suspecting that the
dumping offence was being or had been committed.
(d) The
warrant is invalid, insofar as it relates to the road charge, because
the admissible evidence presented to the
Magistrate did not establish
reasonable grounds for suspecting that the road offence was being or
had been committed.
(e) Were it
not for the finding in (a), I would not have set aside the warrant in
relation to the jetty charge, ie I
do not think the other attacks on
the warrant in respect of this charge are sound.
(f) Were it
not for the finding in (b), I would not have set aside the warrant in
relation to the failing cliff charge,
ie I do not think that the
other attacks on the warrant in respect of this charge are sound.
(g) But for
the cumulative findings set out above, I would not have set aside the
warrant as lacking intelligibility
or for failing to identify the
suspected offender or as being partially ultra vires.
(h) But for
the cumulative findings set out above, I would not have declared the
execution of the warrant unlawful.
Preservation
of seized material
[214]
The respondents contended that, if I should find the
warrant or its execution to be unlawful, I should grant an order
preserving
the seized material and evidence pending further
developments. In their heads of argument the respondents’
counsel submitted
that preliminary litigation on search warrants is
generally undesirable and should not be entertained, adding that in
practice
the courts discourage this type of preliminary litigation by
granting preservation orders even if the application succeeds.
[215]
I did not understand Mr Paschke to press for the
dismissal of the application as constituting inappropriate
preliminary litigation.
As Langa CJ observed in
Thint
para 65, there is no absolute rule. He said
that if a warrant is clearly unlawful, the victim should be able to
have it set aside
promptly. If the trial is only likely to commence
far in the future, the victim should be able to engage in preliminary
litigation
to enforce its fundamental rights. The litigation which
the courts should not entertain is litigation having as its purpose
to
avoid the application of s 35(5) of the Constitution or to
delay criminal proceedings. That is not the case here. MSR has not
yet been charged. No criminal trial is imminent. MSR has raised
points of substance. The issue regarding the inspectors’
mandates required resolution in any event.
[216]
Mr Paschke did
argue, however, that I should grant a preservation order. In
Thint
paras
216-223 Langa CJ analysed the legal foundation for such orders. He
held that the court’s authority to make a preservation
order is
sourced in s 172(1)(b) of the Constitution. He considered that
preservation orders of the kind proposed in the minority
judgment in
Thint
in
the Supreme Court of Appeal
[19]
and in para 34 of the majority judgment in
National
Director Of Public Prosecutions & Another v Mohamed
2008
(1) SACR 309
(SCA) would frequently be a just and equitable remedy.
Importantly, he held that the ‘ordinary rule’ should be
that,
when a court finds a warrant to be unlawful, it will preserve
the evidence so that the trial court can apply its discretion in
terms of s 35(5) of the Constitution in deciding whether or not
the unlawfully obtained evidence should be admitted. A court
should
only depart from this ordinary rule if the applicant can identify
specific items the seizure of which constituted a serious
breach of
privacy that affected the ‘inner core of the personal or
intimate sphere’ or where there was ‘particularly
egregious conduct in the execution of the warrant’.
[217]
As appears from the preservation orders made or proposed
in the judgments referred to by Langa CJ, a preservation order does
not
have as its sole purpose to preserve the evidence for possible
use at the trial pursuant to s 35(5) of the Constitution. The order
also takes into account that the evidence might lawfully be seized in
the future pursuant to a process not vitiated by the errors
which
rendered the first warrant unlawful.
[218]
Although the cases discussed above dealt with
s 29
of the
National Prosecuting Authority Act 32 of 1998
, similar
considerations apply to
s 21
of the CPA (see
Van
den Berg & Another v Page & Others
[2016]
ZAWCHC 82
para 11).
[219]
In the present case there are no special circumstances
justifying a departure from the ‘ordinary rule’. MSR, as
a company
operating in a regulated activity, does not have an inner
core of personal and intimate space. There was no egregious conduct
in
the execution of the warrant. Apart from the fact that a trial
court might find the seized material to be admissible in terms of
s
35(5) of the Constitution, it is quite plausible that a fresh warrant
may be obtained pursuant to a lawful process. A national
inspector
could seek a warrant in respect of the failing cliff charge and (if
it is thought to be sustainable) the dumping charge.
A mining
inspector or a police official (whose mandate is in no way restricted
by the provisions of NEMA) could seek a warrant
in respect of the
jetty charge, the increased footprint charge and the road charge.
[220]
Based on the fuller information contained in the
affidavits before me, the charges cannot be said to lack substance.
Even if some
aspects of MSR’s conduct became lawful as from 14
April 2015 (which I doubt), the DRM’s decision of that date did
not
retrospectively legitimise the activities in question. If MSR
took matters into its own hands and only sought the necessary
approvals
after the event, such conduct is to be strongly deprecated.
If the failure of the cliff was caused or exacerbated by MSR’s
unauthorized decision to move the PBCs to the SCP site in late 2013,
that is a very serious matter.
[221]
The preservation order I intend to make will take into
account that the original documents have been returned to MSR and
that the
investigators did not seize or copy any electronic data. The
order proposed by Farlam JA in
Thint
imposed
restrictions not only in respect of retained copies but in respect of
originals returned to the searched person. I assume
that this was for
the reason that the investigators only became aware of the documents
in question (ie of the originals returned
to the searched person) by
virtue of the unlawful warrant. However I am disinclined in the
present case to afford MSR special protection
in relation to the
original documents returned to MSR. They are business records which
MSR could be expected to keep. The fact
of their existence is not
surprising.
Conclusion
[222]
MSR has achieved substantial success. The respondents
must thus pay MSR’s costs, including those attendant on the
employment
of two counsel.
[223]
The respondents applied at a late stage for leave to
file further affidavits. These affidavits were not lengthy. MSR
replied to
them. Although the material is of dubious relevance, it
was placed before me and reference was made to it in argument. Little
point
would be served in dismissing the application for leave to
adduce the late affidavits.
[224]
I make the following order:
(a) The
application by the second, fourth, fifth, sixth and seventh
respondents, served on 31 January 2017, for leave
to file further
affidavits is granted.
(b) The
decision of the first respondent, taken on 28 September 2016, to
issue a search and seizure warrant in terms
of
s 21
of the
Criminal Procedure Act 51 of 1977
in Case 78/2016, a copy of which
warrant is attached to the founding affidavit as annexure “SPM12”,
is reviewed
and set aside.
(c) The said
warrant is declared to be invalid and is set aside.
(d) The
second, fifth, sixth and seventh respondents must, within two weeks
of this order, cause one copy of all the
documents, photographs,
measurements and other evidence seized or taken during the execution
of the warrant on 29 September 2016
(‘the retained items’),
together with a detailed itemised index thereof, to be delivered to
the registrar, who is directed
to keep same intact under seal until:
(i) the
said respondents notify the registrar in writing that the retained
items or any of them may be returned to the
applicant;
(ii) if
proceedings are instituted in respect of the charges identified in
the warrant as read with the affidavits made
in support thereof, the
conclusion of such proceedings;
(iii) the
date upon which the National Prosecuting Authority decides not to
institute, or decides to abandon, such proceedings.
(e) Simultaneously
with delivery to the registrar in terms of (d), the said respondents
must:
(i) cause
one copy of the retained items together with the index to be
delivered to the applicant’s attorneys;
(ii) deliver
an affidavit, by a person with personal knowledge thereof, confirming
that all other copies of the retained
items have been destroyed.
(f) The
provisions of (d) are subject to:
(i) any
order of any competent court (whether obtained by the applicant or by
the respondents);
(ii) the
lawful execution of any search warrant obtained in the future; or
(iii) the
duty of the applicant or the registrar to comply with any lawful
subpoena issued in the future.
(g) Neither
the respondents nor inspectors appointed by them may take any steps
to obtain access to any of the retained
items unless they give the
applicant reasonable prior notice before any such step is taken.
(h) No order
is made in respect of para 7 of Part B of the applicant’s
notice of motion (the prayer for declaratory
relief) or on the
conditional counter-application delivered by the second, fifth, sixth
and seventh respondents.
(i) The
second, fifth, sixth and seventh respondents jointly and severally
are directed to pay the applicant’s
costs, including those
attendant on the employment of two counsel.
______________________
ROGERS
J
APPEARANCES
For
Applicant
Mr
PB Hodes SC & Mr HJ de Waal
Instructed
by
Hogan
Lovells (South Africa) Inc
22
Fredman Drive
Sandton
For
2
nd
, 5
th
, 6
th
& 7
th
Respondents
Mr
R Paschke, Mr T Sidaki and Ms J Bleazard
Instructed
by
The
State Attorney
22
Long Street
Cape
Town
[1]
[A]
Pursuant
to
s 14(1)
of Act 62 of 2008, that Act was proclaimed to come
into operation on 1 May 2009. Section 14(2) provided, however, that,
notwithstanding
any such proclamation, the provisions relating to
prospecting, mining, exploration and production and related
activities would
only come into operation on a date 18 months after
the commencement of s 2 of Act 25 of 2008 or of Act 49 of 2008,
whichever
was the later. The later of these dates was 7 June 2013,
being the commencement date of Act 49 of 2008. Subject to what I say
next, the result would have been that the mining provisions of Act
62 of 2008 came into force on 8 December 2014.
[B]
However
Act 25 of 2014 not only amended NEMA but also amended Act 62 of
2008, the mining provisions of which had not yet become
operative.
Act 25 of 2014 amended Act 62 of 2008 inter alia by deleting s 14(2)
of the latter Act with effect from a date
one day before the
commencement of Act 25 of 2014. Since it was s 14(2) which was
deferring the coming into force of the
mining provisions of Act 62
of 2008, the effect of the deletion of s 14(2) seems to have been
that the mining provisions of Act
62 of 2008 came into force one day
before the date on which Act 25 of 2014 came into force. Since Act
25 of 2014 came into force
on 2 September 2014, the mining
provisions of Act 62 of 2008 came into force on 1 September 2014.
[C]
Although
Act 49 of 2008 (which amended the Mining Act) came into operation on
7 June 2013, s 94(2) provided that, notwithstanding
any such
proclamation, certain sections were only to come into force on the
date contemplated in s 14(2) of Act 62 of 2008. The
intention
clearly was that the mining provisions inserted into NEMA by Act 62
of 2008, and the corresponding amendments to the
Mining Act, should
come into force on the same date. The authorities seem to have
believed that the date in question was 8 December
2014. It appears
though, that the unintended consequence of the deletion of s 14(2)
of Act 62 of 2008 by Act 25 of 2014
was that the provisions in
question came into force on 1 September 2014 rather than 8 December
2014.
[2]
See footnote 1 above.
[3]
This was in terms of regulation 67 of the 2010 EIA Regulations.
[4]
Oudekraal Estates (Pty) Ltd
v City of Cape Town
2004
(6) SA 222 (SCA).
[5]
In the respondents’ case, the dumping charge is dealt with in
paras 159-166 of their main heads and in sheet 3.4 of their
counsel’s very helpful ‘mind map’.
[6]
pp 657-658.
[7]
pp 729.
[8]
pp 687, 731.
[9]
p 733.
[10]
p 842.
[11]
[A]
By
14 April 2015 s 39(6) of the Mining Act had been repealed.
Unless s 39 remained in force by virtue of transitional
arrangements, the DMR had no statutory power to approve an amended
Mining EMP. The DMR, having become the competent authority
as from 8
December 2014, had the statutory power to approve an amended NEMA
EMP in terms of s 24N of NEMA read with regulation
37 the 2014
EIA Regulations but that is not a power which the DMR purported to
exercise. The effect of s 12(4) of Act
62 of 2008 is that
MSR’s amended Mining EMP of 9 June 2011, being a Mining EMP in
force as at 8 December 2014, was deemed
to be a NEMA EMP approved in
terms of s 24N of NEMA. On the face of it, therefore, one would
expect that any amendment of the
EMP after 8 December 2014 should
take place in accordance with NEMA and the 2014 EIA Regulations.
[B]
Section
12(7) of Act 62 of 2008 applies to an ‘application for a right
or permit in relation to prospecting, exploration,
mining or
production’ in terms of the Mining Act. An application to
amend a Mining EMP is not an application for a right
or permit as
contemplated in s 12(7). It is a programme for managing the
impacts of mining and is a prelude to the grant
of a right or
permit. The Mining Act contains many provisions relating to
applications for rights, permits and permissions. The
Mining Act
does not use the language of ‘right’ or ‘permit’
in relation to EMPs. If s 12(7) applied
to an application to
amend a Mining EMP, I would have expected a further provision, along
the lines of s 12(4), to the effect
that an amended Mining EMP
approved pursuant to s 12(7) would be deemed to be a NEMA EMP.
[C]
Of
course, if there was a pending application for a mining right as at
8 December 2014, the finalisation of that application with
reference
to the unamended provisions of the Mining Act would entail inter
alia that the Mining Minister could approve a Mining
EMP in terms of
s 39 as part of the process of granting the mining right. But
if as at 8 December 2014 a company already
held a mining right and
was simply applying to amend the EMP, there would be no application
for a right or permit and s 12(7)
would thus not operate.
[D]
What then is one to make of the curious regulation 54 of the 2014
EIA Regulations? There can be no doubt that the framer of regulation
54 intended that its provisions should apply inter alia to pending
applications for the amendment of Mining EMPs. The regulation
has
not been attacked as ultra vires. Nevertheless it is difficult to
see how regulation 54 could have any legal effect in relation
to
pending applications to amend Mining EMPs. The transitional
provision in regulation 54 is that pending applications submitted
in
terms of the Mining Regulations should be dealt with as if the
Mining Regulations were not repealed. Apart from the fact that
the
Mining Regulations have not been repealed, they did not deal with
applications to amend Mining EMPs. Those were regulated
directly by
s 36(9) read with s 102 of the Mining Act. Accordingly,
the deemed continuance of the Mining Regulations
could have no legal
effect on pending applications to amend Mining EMPs. How such
pending applications were to be dealt with
depends on the
transitional provisions relating to the Mining Act. For reasons I
have explained, s 12(7) of Act 62 of 2008
does not seem to me
to apply to pending applications to amend mining EMPs.
[E]
If
this view is correct, the DMR acted without statutory foundation
when it purported to approve the amended Mining EMP on 14
April
2015. It might be said that the approval nevertheless stands until
set aside on review. While that is no doubt the general
principle,
where would it take MSR in the present case? If MSR requires
approval of an amended EMP in terms of s 24N of
NEMA read with
the 2014 EIA Regulations in order to legitimise its departures from
the previous Mining EMP, the amended Mining
EMP purportedly approved
in terms of the repealed s 39(6) is irrelevant since there is
no law which says that the amended
Mining EMP is deemed to
constitute an amended NEMA EMP. The DMR’s decision to approve
the amended Mining EMP might technically
stand until set aside but
it is a decision without legal consequence.
[12]
p 714.
[13]
160 m x 170 m [p 486 and p 519].
[14]
p 685.
[15]
Paras 186-192 of the main heads and sheet 3.5 of the ‘mind
map’.
[16]
Record 737-738.
[17]
Mr Paschke, in support of an argument that I could have regard to
the affidavits, referred me to the Canadian case of
R
v Gladwin
[1997] OJ No
2479 (ONCA). The decision is not entirely in point, since there the
court was concerned not with the validity of
the warrant but with
the question whether material seized pursuant to the warrant should
be sent to the United States, a question
which was regarded as being
similar to the one which arises where, at a criminal trial, the
court is asked to admit unlawfully
seized evidence.
[18]
Cf
Sebola & Another v
Standard Bank of South Africa Ltd & Another
2012
(5) SA 142
(CC) para 68.
[19]
2008 (1) SACR 258
(SCA) para 70.