Global Environmental Trust and Others v Tendele Coal Mining (Pty) Ltd and Others (1105/2019) [2021] ZASCA 13; [2021] 2 All SA 1 (SCA) (9 February 2021)

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Global Environmental Trust and Others v Tendele Coal Mining (Pty) Ltd and Others (1105/2019) [2021] ZASCA 13; [2021] 2 All SA 1 (SCA) (9 February 2021)

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THE SUPREME COURT
OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
reportable
Case
No: 1105/2019
In the matter
between:
GLOBAL
ENVIRONMENTAL TRUST
FIRST
APPELLANT
MFOLOZI COMMUNITY
ENVIRONMENTAL
JUSTICE
ORGANISATION

SECOND APPELLANT
SABELO DUMISANI
DLADLA

THIRD APPELLANT
and
TENDELE COAL
MINING (PTY) LTD
FIRST RESPONDENT
MINISTER OF
MINERALS AND ENERGY   SECOND RESPONDENT
MEC: DEPARTMENT
OF ECONOMIC
DEVELOPMENT,
TOURISM AND
ENVIRONMENTAL
AFFAIRS

THIRD RESPONDENT
MINISTER OF
ENVIRONMENTAL
AFFAIRS

FOURTH RESPONDENT
MTUBATUBA
MUNICIPALITY
FIFTH

RESPONDENT
HLABISA
MUNICIPALITY

SIXTH
RESPONDENT
INGONYAMA
TRUST
SEVENTH

RESPONDENT
EZEMVELO KZN
WILDLIFE
EIGHTH

RESPONDENT
AMAFA
AKWAZULU-NATALI
HERITAGE
COUNCIL                                          NINTH

RESPONDENT
CENTRE FOR
ENVIRONMENTAL RIGHTS         AMICUS
CURIAE
MPUKUNYONI
TRADITIONAL COUNCIL
AMICUS
CURIAE
MPUKUNYONI
COMMUNITY MINING FORUM
AMICUS
CURIAE
THE
ASSOCIATION OF MINE WORKERS
AND
CONSTRUCTION UNION
AMICUS
CURIAE
THE
NATIONAL UNION OF MINEWORKERS
AMICUS
CURIAE
Neutral
citation:
Global
Environmental Trust and Others v Tendele Coal Mining (Pty) Ltd and
Others
(1105/2019)
[2021] ZASCA 13
(09 February 2021)
Coram:
PONNAN,
SCHIPPERS, PLASKET AND NICHOLLS JJA AND LEDWABA AJA
Heard:
03
November 2020
Delivered:
This
judgment was handed down electronically by circulation to the
parties’ representatives by email. It has been published
on the
Supreme Court of Appeal website and released to SAFLII. The date and
time of hand-down is deemed to be 10H00 on 09 February
2021.
Summary:
Interdict
to stop coal mining – interpretation of statutes –
National Environmental Management Act 107 of 1998 (NEMA)
–
environmental authorisation to undertake listed activity under s 24 –
whether required by holder of mining right
and environmental
management programme in terms of the
Mineral and Petroleum Resources
Development Act 28 of 2002
– no case made out for interdict in
founding papers – municipal approval of land use –
Spatial Planning and Land Use Management Act 16 of 2013
,
KwaZulu-Natal Planning and Development Act 6 of 2008 and Mtubatuba
Local Municipality Spatial Planning and Land Use Management
By-Law,
2017 – not required by virtue of transitional arrangements –
National Environmental Management Waste Act 59 of 2008
– waste
management licence not required by reason of transitional provision –
non-compliance with the
KwaZulu-Natal
Heritage Act 4 of 2008
–
relocation
of ancestral graves – no reasonable apprehension of harm –
interdict refused.
ORDER
On
appeal from:
KwaZulu-Natal
Division of the High Court, Pietermaritzburg (Seegobin J sitting as
court of first instance): judgment reported
sub
nom Global Environmental Trust and Others v Tendele Coal Mining (Pty)
Ltd and Others
[2019] 1 All SA 176
(KZP).
The
appeal is dismissed.
JUDGMENT
Schippers JA:
[1]
The
central issue in this appeal is whether the first respondent, Tendele
Coal Mining (Pty) Ltd (Tendele), is mining without the
necessary
statutory authorisations and approvals. The matter arises from an
unsuccessful application by the appellants in the KwaZulu-Natal

Division of the High Court, Pietermaritzburg (the high court), to
interdict Tendele from continuing with any mining operations
at its
Somkhele Mine in Mtubatuba, KwaZulu-Natal (the mine). The appeal is
with the leave of the high court.
[2]
The
first appellant is Global Environmental Trust, established inter alia
to preserve the planet and its natural resources. The
second
appellant, Mfolozi Community Environmental Justice Organisation, is a
not-for-profit organisation, whose objects include
the implementation
of environmentally sustainable projects for the Fuleni community in
northern KwaZulu-Natal (KZN). The third
appellant and main deponent
to the founding papers, Mr Sabelo Dumisani Dladla, an Eco-tourism
Management student who lives in Nlolokotho,
near the mine, withdrew
from this appeal on 29 October 2020. Tendele consented to the
withdrawal of the appeal and seeks no order
for costs. In what
follows I refer to the first and second appellants as ‘the
appellants’.
[3]
The
amici
curiae
represented in the appeal are the Centre for Environmental Rights
(CER) and as a group, Mpukunyoni Traditional Council, Mpukunyoni

Community Mining Forum, the Association of Mine Workers and
Construction Union and the National Union of Mineworkers (the
Mpukunyoni
amici
).
The CER, in its written and oral submissions, contended that the high
court erred in its interpretation of the relevant statutory

provisions, and in ordering the appellants to pay Tendele’s
costs. The Mpukunyoni
amici
submitted
that the orders sought by the appellants, if granted, would
ultimately lead to the closure of the mine which, in turn,
would have
disastrous effects on neighbouring communities.
Facts
[4]
The
basic facts can be shortly stated. The mine has one of the largest
resources of open-pit mineable anthracite reserves in South
Africa
and is the principal supplier of anthracite to ferrochrome producers
in the country. Ferrochrome is an essential component
in the
production of stainless steel. South Africa is one of the largest
producers of ferrochrome in the world, second only to
China.
Tendele
began mining operations in 2006 pursuant to the grant of an ‘old
order’ mining licence and subsequently a mining
right, and the
approval of an Environmental Management Programme (EMP) under the
Mineral and Petroleum Resources Development Act
28 of 2002 (MPRDA).
[5]
The
mine comprises a single mining area on Reserve No 3 (Somkhele) No
15822 (Reserve No 3). However, the mining operations are divided

between five areas and separate mining rights and separate EMPs apply
to the different areas. The Area 1 mining right was granted
to
Tendele on 21 May 2007 and the EMP applicable to that mining right,
approved on 22 June 2007 by the former Department of Mineral

Resources (DMR). The Areas 2 and 3 converted mining right was granted
to Tendele on 1 February 2011. On 8 March 2013 this right
was amended
to include the KwaQubuka and Luhlanga areas. The EMP applicable to
the Areas 2 and 3 converted mining right was approved
on 30 March
2011. Amendments to this EMP to cater for the inclusion of the
KwaQubuka and Luhlanga areas, were approved on 29 May
2012. The
mining right in respect of Areas 4 and 5 was granted on 31 May 2016.
The EMP applicable to this right was approved on
26 October 2016.
[6]
Tendele
is actively mining only in Area 1 and the extended area of Area 2,
namely the KwaQubuka and Luhlanga areas. The mine’s
coal wash
plants are located in Area 2. No mining operations are conducted in
Area 3. Mining in Area 2 ceased in January 2012 due
to depletion of
anthracite reserves. Mining operations have not commenced in Areas 4
and 5.
[7]
In
October 2017 the appellants sought an interdict to prevent Tendele
from carrying on with any mining operations in the following
areas:
Area 1 as described in the mining right dated 22 June 2007; Areas 2
and 3 described in the mining right dated 30 March 2011;
the
KwaQubuka and Luhlanga areas described in an amendment to the mining
right dated 8 March 2013; and a part of the Remainder
of Reserve No 3
No 15822, in extent 21 233.0525 hectares, described in the mining
right dated 26 October 2016.
[8]
The
interdict was sought on the basis that Tendele was ‘non-compliant
in respect of the permits or approvals required’
in relation to
mining, environmental authorisation, land use, interference with
graves and waste management. More specifically,
the appellants
alleged that Tendele has no environmental authorisation issued in
terms of s
24(2)
of
the National Environmental Management Act 107 of 1998 (NEMA) to
conduct mining operations. Tendele has no authority, approval
or
permission from a municipality to use land for mining operations.
Tendele has no written approval in terms of s 35 of the KwaZulu-Natal

Heritage Act 4 of 2008 (the KZN Heritage Act) to damage, alter or
exhume traditional graves. Tendele does not have a waste management

licence issued by the fourth respondent, the Minister of
Environmental Affairs (the Environment Minister), under s 43(1)
of the National Environmental Management: Waste Act 9 of 2008 (the
Waste Act), or by the second respondent, the Minister of Minerals
and
Energy (the Mining Minister), in terms of s 43(1A) of the Waste
Act.
[9]
Tendele
opposed the application for an interdict, essentially on the
following grounds. Tendele’s mining operations are undertaken

in terms of valid mining rights and EMPs under the MPRDA. The
legislative amendments introduced with effect from 8 December 2014,

that gave effect to the so-called ‘One Environmental System’,
in terms of which the holder of a mining right is required
to have
environmental authorisation for its operations, contain transitional
arrangements for the continuation of mining operations
lawfully
conducted prior to those amendments. In terms of the One
Environmental System, all the environmental aspects of mining
are
regulated through NEMA and all environmental provisions are repealed
from the MPRDA.
[1]
The mine
operates lawfully, in compliance with the relevant land-use planning
laws. The waste management activities by Tendele
are authorised in
terms of the transitional provisions of the Waste Act, which provide
for the continuation of such activities
lawfully undertaken prior to
the amendment on 29 November 2013, of the list of waste management
activities that have a detrimental
effect on the environment.
[10]
Tendele
accepted that it had previously removed or altered traditional graves
without the necessary authorisation, but asserted
that it did so
after consultation with the families concerned. Since 2017 it has
been working in collaboration with the ninth respondent,
AMAFA
aKwaZulu-Natali Heritage Council (AMAFA Heritage Council), and a
comprehensive procedure for future relocation of graves
has been
established.
[11]
The
high court (Seegobin J) dismissed the application with costs. Its
main findings may be summarised as follows. The appellants
failed to
establish a proper cause of action: they did not identify precisely
the activities undertaken by Tendele without the
necessary
environmental authorisation. Prior to the coming into force of the
One Environmental System on 8 December 2014, the environmental

impacts of mining were regulated exclusively under the MPRDA in terms
of approved EMPs. Section 12(4) of the National Environmental

Management Amendment Act 62 of 2008 (the 2008 NEMA Amendment Act),
which provides that an EMP approved under the MPRDA must be
regarded
as having been approved in terms of NEMA, has the status of an
environmental authorisation under NEMA. The purpose of
this
transitional provision was to allow the holder of an EMP lawfully
conducting mining operations as at 8 December 2014, to continue
to do
so after that date. This interpretation is supported by the
presumption against the retrospective operation of statutes.
[12]
The
high the court concluded that the Mining Minister was satisfied with
Tendele’s EMPs and the manner in which it conducted
its mining
operations, because no action had been taken against Tendele in terms
of s 12(5) of the 2008 NEMA Amendment Act. This
provision states that
if the Mining Minister is of the opinion that mining operations are
likely to result in unacceptable pollution,
ecological degradation or
damage to the environment, the Minister may direct the holder of a
mining right to take action to upgrade
an EMP to address the
deficiencies. In terms of s 24L(4) of NEMA, a competent authority
empowered under Chapter 5 to issue an environmental
authorisation
(the Mining Minister), may regard ‘an authorisation in terms of
any other legislation’ that meets all
the requirements
stipulated in s 24(4), as an environmental authorisation in terms of
Chapter 5. Tendele’s EMPs constitute
authorisations in terms of
any other legislation.
[13]
The
high court held that the laws relating to land use, requiring
authority, approval or permission from the relevant municipality,
do
not apply to Tendele, whose mining operations predate the coming into
force of those laws. Tendele does not require a waste
management
licence under the Waste Act since it was lawfully conducting mining
operations in terms of approved EMPs. The appellants
were not
entitled to an interdict, since they failed to establish a reasonable
apprehension that Tendele would exhume or relocate
traditional graves
without the necessary statutory safeguards.
Environmental
authorisation
[14]
The
issue on this part of the case, is whether Tendele requires, in
addition to a mining right and an EMP in terms of the MPRDA,

environmental authorisation under NEMA for activities incidental to
mining, specified as ‘listed activities’ in the
relevant
environmental impact assessment (EIA) regulations. Section 24F(1)
(a)
of NEMA prohibits the commencement of ‘listed activities’
without environmental authorisation. Listed activities are
those
identified in terms of ss 24(2)
(a)
and 24(2)
(d)
of NEMA.
[15]
Acting
in terms of s 24(2)
(a)
of NEMA (and its predecessor, s 21 of the Environment Conservation
Act 73 of 1989 (ECA)) the Environment Minister has identified

numerous listed activities requiring environmental authorisation.
Since the first list of activities was published on 5 September
1997
in terms of the ECA,
[2]
until
the most recent list published on 4 December 2014 under NEMA,
[3]
there have been amendments and additions to, and removal and
replacement of, listed activities in the EIA regulations.
No
proper cause of action?
[16]
The
appellants alleged that normally, mining is a listed activity which
has an impact on the environment and thus requires environmental

authorisation in terms of NEMA. However, they did not identify the
listed activities that Tendele allegedly commenced without
environmental authorisation, nor the date on which those activities
commenced. Counsel for Tendele submitted that this was fatal
to their
case, with the result that the issue as to the proper interpretation
of the MPRDA and NEMA concerning an environmental
authorisation
contemplated in NEMA, did not arise on the founding papers. This
submission is unsound, for the reasons advanced
below.
[17]
First,
there is nothing in the answering affidavit that even suggests that
the application should be dismissed because the appellants
failed to
state the listed activities conducted by Tendele without
environmental authorisation. Neither did Tendele oppose the

application on the basis that it was not engaged in any listed
activity. Instead, Tendele’s sole defence was that no
environmental
authorisation under NEMA was necessary because its
mining operations were conducted in terms of its mining rights and
EMPs issued
under the MPRDA.
[18]
What
crystallised as the main issue between the parties, is easily
explained in the light of the facts leading up to the application,

set out in the founding affidavit.
In
June 2017 the appellants’ attorney wrote to the DMR and the
Department of Environmental Affairs (DEA), stating that Tendele
was
conducting activities listed in the EIA Regulations Listing Notices
(no details were given), and requesting a copy of all environmental

authorisations issued to Tendele, together with supporting
documentation. The DMR replied that the EMPs issued under the MPRDA

were deemed to be EMPs issued under NEMA, and that any environmental
authorisations issued by the DEA was in the process of being

transferred to the DMR for monitoring and compliance.
[19]
It
turned out that Tendele has no environmental authorisation in terms
of NEMA to conduct any listed activity. Indeed, this is common

ground. Its approach throughout was that it did not require
environmental authorisation because the environmental impacts of
mining
were regulated exclusively by the MPRDA in terms of approved
EMPs. In June 2017 Tendele issued a public statement that according

to the statutory framework that governed mining in South Africa, the
ECA and NEMA did not apply to mining operations at the relevant
time.
[20]
The
appellants therefore approached the high court, claiming that Tendele
is mining unlawfully because it has no environmental authorisation
in
terms of s 24 of NEMA. Unsurprisingly, the founding affidavit
states that this is ‘common cause from the correspondence’;

and the high court noted that whether Tendele was required to obtain
environmental authorisation under s 24, was an issue for
determination. The facts thus show that the appellants had no reason
to anticipate any dispute as to whether Tendele’s mining

operations triggered any listed activity. This is buttressed by the
fact that Tendele at no stage, raised such dispute. Had Tendele

denied that its mining operations triggered any listed activities,
the appellants could have dealt with such denial in their founding
or
replying papers.
[21]
There
was accordingly no dispute between the parties as to whether Tendele
was conducting listed activities. Solely for these reasons,
Tendele’s
argument has no merit: it is opportunistic and contrived. But even if
there was any dispute of fact as to whether
Tendele’s mining
operations included listed activities, it should be resolved against
Tendele. As this Court stated in
Wightman
:
[4]
‘
When
the facts averred are such that the disputing party must necessarily
possess knowledge of them and be able to provide an answer
(or
countervailing evidence) if they be not true or accurate but, instead
of doing so, rests his case on a bare or ambiguous denial
the court
will generally have difficulty in finding that the test [for the
resolution of factual disputes in motion proceedings]
is satisfied .
. . If that does not happen it should come as no surprise that the
court takes a robust view of the matter.’
[22]
Secondly,
Seegobin J, dealing with environmental authorisations and listing
notices prior to the amendments which came into effect
on 8 December
2014, said this:
‘
It
seems that prior to 8 December 2014 mining per se was not a listed
activity, however anyone intending to embark on mining would
of
necessity have to perform certain activities which were listed
activities (e.g. establishing infrastructure for bulk transportation

of water; facilities for the storage of fuel; clearing indigenous
vegetation covering more than 1 hectare, etc) and would therefore

have required environmental authorisation for those activities in
terms of s 24.’
[23]
This
is a dictum by Rogers J in
Mineral
Sands Resources
,
[5]
which in my view is correct. Given that mining inevitably involves
the performance of listed activities, the high court’s

criticism that the founding affidavit ‘does not go far enough
to establish a proper cause of action’, is baffling.
[24]
Thirdly,
the inescapable inference to be drawn from the facts in the papers,
and the nature and extent of Tendele’s mining
operations
(according to the answering affidavit, ‘Somkhele has one of the
largest resources of open-pit mineable anthracite
reserves in South
Africa’), is that Tendele conducts listed activities as
contemplated in the EIA listing notices. Open pit
mining of necessity
involves clearing indigenous vegetation covering more than one
hectare. The answering affidavit states that
Tendele has not yet
commenced mining operations in Areas 4 and 5 – comprising 21
233 hectares (more than 200 km²) and
some ten times larger than
the areas covered by the other mining rights combined.
[25]
Further,
Tendele conducts conventional truck and shovel mining operations
using explosives, and it utilises water in bulk supply
at its coal
washing plants located in Area 2. As stated in the affidavit of the
Mpukunyoni
amici
,
and as Tendele’s main deponent, Mr Jan du Preez, must know, an
investment for the establishment for a third wash plant,
which would
add an additional 400 000 tonnes of saleable energy product to the
1.2 million tonnes of anthracite produced per annum,
has been
approved. Environmental authorisation is required for the
establishment of facilities for the storage of fuel; infrastructure

for the bulk transportation of water; and buildings and structures
for the storage of explosives.
[26]
Finally,
the question whether Tendele is mining unlawfully because it has no
environmental authorisation in terms of s 24 of NEMA
was squarely
raised on the papers. This question is specifically relevant to the
mining right granted to Tendele in 2016, which
covers Areas 4 and 5
where mining has not yet commenced. The answering affidavit states
that even after the introduction of the
One Environmental System in
2014, which requires the holder of a mining right to obtain
environmental authorisation under NEMA,
this does not apply to
Tendele whose mining operations remain lawful by virtue of
transitional arrangements.
[27]
For
these reasons, I am unable to agree with the high court’s
criticism that the appellants failed ‘to establish a proper

cause of action on the issue of any illegality on the part of
Tendele’. But quite apart from the pleadings issue, as rightly

submitted by the CER, it is necessary for this Court to pronounce on
the interpretive question for two reasons. First, the high
court’s
order stands until it is set aside by this Court and is binding in
KZN. This, as appears from
Mineral
Sands Resources
,
[6]
gives rise to a divergence of interpretation of the relevant
statutory provisions in the KZN Division and other Divisions in the

country. Second, the absence of clarity and certainty concerning the
correct interpretation will potentially weaken the environmental

protections sought to be achieved by s 24 of the Constitution and
NEMA. This, in turn, would result in the flouting of environmental

standards and undermine the rule of law.
[7]
The
MPRDA does not cover environmental impacts of mining
[28]
As
stated above, the high court accepted that prior to the commencement
of the One Environment System on 8 December 2014, anyone
intending to
mine would of necessity undertake listed activities and require
environmental authorisation in terms of s 24 of NEMA.
Despite this,
the court held that the decision to grant a mining right and approve
a mining EMP, ‘effectively constituted
the environmental
authorisation to conduct the mining activity’.
[29]
Counsel
for the appellants argued that the high court was wrong to hold that
the environmental impacts of mining were regulated
exclusively
through the MPRDA and the requirement to obtain an EMP under that Act
before commencing mining. The high court’s
interpretation, it
was argued, collapses NEMA into the MPRDA, instead of allowing each
statute to regulate environmental matters
in tandem.
[30]
Counsel
for Tendele, however, submitted that the MPRDA was enacted to cover
the field in relation to the environmental impacts and
management of
mining-related activities. The legislature, so it was submitted, made
the implementation of the MPRDA subject to
the principles in s 2 of
NEMA, but left the interpretation thereof and decision-making in the
hands of the functionaries of the
DMR in accordance with the MPRDA
and the regulations made under it.
[31]
Both
the MPRDA and NEMA are statutes that give effect to the right to have
the environment protected for the benefit of present
and future
generations, enshrined in s 24 of the Constitution.
[8]
It
is a settled principle that courts are required to interpret statutes
purposively, in conformity with the Constitution and in
a manner that
gives effect to the rights in the Bill of Rights.
[9]
In
Fuel
Retailers
,
[10]
the Constitutional Court said:
‘
The
role of the courts is especially important in the context of the
protection of the environment and giving effect to the principle
of
sustainable development. The importance of the protection of the
environment cannot be gainsaid. Its protection is vital to
the
enjoyment of the other rights contained in the Bill of Rights;
indeed, it is vital to life itself.’
[32]
The
Constitutional Court has explained NEMA’s structural and
integrative role regarding the protection of the environment,
as
follows:
‘
NEMA
was enacted as a general statute that coordinates environmental
functions performed by organs of state. It also provides for

“co-operative environmental governance by establishing
principles for decision-making on matters affecting the environment”.

As is evident from the long title, NEMA was passed to establish a
framework regulating the decisions taken by organs of state in

respect of activities which may affect the environment. It lays down
general principles which must be followed in making decisions
of that
nature.’
[11]
[33]
These
mandatory principles, set out in s 2(1) of NEMA, must be applied when
an organ of state takes any decision in terms of NEMA
or
any
statutory provision
concerning the protection of the environment, and guide the
interpretation, administration and implementation of NEMA and any
other law concerned with environmental protection or management.
[12]
[34]
Consistent
with these principles, sustainable development and sustainable use
and exploitation of natural resources are at the core
of the
protection of the environment. Thus, s 2(4)
(a)
of NEMA imposes sustainable development which requires that a
‘risk-averse and cautious approach is applied’ whereby

‘negative impacts on the environment and on people’s
environmental rights be anticipated and prevented, and where they

cannot be altogether prevented, are minimised and remedied’.
[13]
NEMA requires that the environment be protected by securing
‘ecologically sustainable development and use of natural
resources
while promoting justifiable economic and social
development’.
[14]
[35]
The
integrative approach to the protection and management of the
environment is emphasised in the language of NEMA itself. Section

2(4)
(b)
states:
‘
Environmental
management must be integrated, acknowledging that all elements of the
environment are linked and interrelated, and
it must take into
account the effects of decisions on all aspects of the environment
and all people in the environment by pursuing
the selection of the
best practicable environmental option.’
[36]
As
already stated, s 24(2)
(a)
of NEMA empowers the Environment Minister to identify ‘activities
which may not commence without environmental authorisation
from the
competent authority’. It must be stressed that s 24(2)
(a)
is not confined to activities that relate specifically to mining:
once an activity has been listed in terms of that provision,

environmental authorisation to conduct that activity must be
obtained. Listed activities, as stated, include establishing
infrastructure
for the bulk transportation of water and facilities
for the storage of fuel, and clearing indigenous vegetation.
[15]
So, nothing turns on the fact that listed activities specifically
related to mining, identified by the Environment Minister in
terms of
s 24 of NEMA and published in the EIA Regulations of 21 April 2006,
never came into force.
[16]
[37]
NEMA
defines ‘environmental authorisation’, inter alia, as
‘the authorisation by a competent authority of a listed

activity or specified activity in terms of this Act’. It
defines a ‘competent authority’ in respect of a listed

activity as, ‘the organ of state charged by this Act with
evaluating the environmental impact of that activity and, where

appropriate, with granting or refusing an environmental authorisation
in respect of that activity’.
[38]
Section
24F(1)
(a)
underscores the need for an environmental authorisation as a
prerequisite for a listed activity.
When
Tendele’s first EMP was approved in 2007, s 24F of NEMA
provided:
‘
24F
Offences relating to commencement or continuation of listed
activities
(1) Notwithstanding
any other Act, no person may–
(a)
commence an activity listed or specified in terms of s 24(2)
(a)
or
(b)
unless the competent authority or the Minister responsible for
mineral resources, as the case may be, has granted an environmental

authorisation for the activity. . . .’
[39]
It
is clear, simply from the above provisions of NEMA, that an
environmental authorisation granted by a competent authority under

NEMA is not the same thing as an EMP approved under the MPRDA. In
Minister
of Mineral Resources v Stern
(to which we were not referred),
[17]
this Court assumed, without deciding, that an environmental
authorisation under NEMA is essentially the same as an EMP. In my
view, it is not. An environmental authorisation is required for the
commencement of an activity identified in a listing notice.
The
impacts of listed activities on the environment are assessed in order
‘to give effect to the general objectives of integrated

environmental management’ in Chapter 5 of NEMA,
[18]
which lays down rigorous processes for that assessment.
[40]
Further,
NEMA defines an ‘environmental management programme’ (a
NEMA EMP) as meaning ‘a programme required in
terms of section
24’.
[19]
Section 24N
provides that the competent authority ‘may require the
submission of an environmental management programme before

considering an application for an environmental authorisation’.
The main function of a NEMA EMP is to set out the proposed

management, mitigation, protection and remedial measures that will be
undertaken to address the environmental impacts of listed
activities.
It is not the function of a NEMA EMP to determine the activities
which an applicant is authorised to undertake.
[20]
[41]
By
contrast, an EMP under the MPRDA is unrelated to a listed activity
envisaged in s 24(2)
(a)
of NEMA. The MPRDA defined an EMP as ‘an approved environmental
management programme contemplated in section 39’.
Section
39(1) of the MPRDA, which has been repealed with the coming into
force of the One Environmental System, required an applicant
for a
mining right to conduct an EIA and submit an EMP. The requisites for
an EIA and EMP were prescribed in regulations 48-51
of the Mining
Regulations.
[21]
Section 23(5)
of the MPRDA provided that a mining right came into effect on the
date on which the EMP was approved in terms of
s 39(5).
[42]
Section
38(1) of the MPRDA required the holder of a mining right to consider,
investigate assess and communicate the impact of its
mining on the
environment as contemplated in s 24(7) of NEMA; and to manage all
environmental impacts in accordance with its EMP.
The main functions
of an EMP under the MPRDA, is to establish baseline information
concerning the affected environment; to investigate,
assess and
evaluate the impact of mining operations on the environment; to
develop an environmental awareness plan describing the
manner in
which the applicant intended to inform its employees of any
environmental risks; and to describe the manner in which
it intended
to modify, remedy, control or stop pollution or environmental
degradation.
[22]
[43]
The
distinction drawn between an environmental authorisation in terms of
NEMA and an EMP under the MPRDA in the cases, is thus not
surprising.
As already stated, it was rightly asserted in
Mineral
Sands Resources
,
[23]
that mining typically involves listed activities and therefore the
holder of a mining right requires environmental authorisation
in
terms of s 24 of NEMA.
Likewise,
the court in
Mining
and Environmental Justice Community Network SA
,
[24]
followed the
integrative
approach to the protection of the environment,
enjoined
by NEMA. In an application to review and set aside a decision
permitting coal mining in a protected wetlands area, it held
that in
order for a party to conduct mining activities, it must obtain a
mining right and approval of an EMP in terms of the MPRDA,
as well as
environmental authorisation for listed activities in terms of s 24
of NEMA.
[25]
[44]
Solely
for these reasons, the high court’s finding that ‘the
environmental impacts of mining were regulated exclusively
under the
MPRDA (2002) in terms of approved EMPs’, is erroneous. First,
it is at odds with the plain wording of the provisions
of both the
MPRDA and NEMA, in particular the requirements of NEMA concerning an
environmental authorisation, referred to in paragraphs
28-31 above,
as well as the general objectives of integrated environmental
management laid down in Chapter 5 thereof. Second,
Maccsand
makes it clear that the MPRDA cannot be read to override the
applicability or requirements of other laws.
[26]
Indeed, and as stated in
Maccsand
,
s 23(6) of the MPRDA expressly renders a mining right granted under
that Act subject to ‘any relevant law’.
[27]
[45]
There
is no provision in the MPRDA or NEMA which suggests that
decision-making in relation to the environmental impacts of mining
is
left to functionaries of the DMR. The converse is true: s 38 of the
MPRDA, prior to its repeal with effect from 8 December 2014,
enjoined
the holder of a mining right at all times to give effect to the
general objectives of integrated environmental management
laid down
in Chapter 5 of NEMA; and to consider, investigate assess and
communicate the impact of its mining on the environment
as
contemplated in s 24(7) of NEMA. The very purpose of Chapter 5 –
containing the prohibition against the commencement
of listed
activities without environmental authorisation – is the
integrated
environmental management of activities. Section 24(1) of NEMA states,
in terms, that the purpose of the identification of listed
activities
is to give effect to the general objectives of integrated
environmental management laid down in Chapter 5.
[46]
The
mandatory objectives of integrated environmental management in
Chapter 5 of NEMA plainly apply to mining and related activities.

These include the integration of the s 2 principles into all
decisions that may significantly affect the environment; identifying

and evaluating actual and potential impacts on the environment and
options for mitigation of activities; and ensuring that the
effects
of activities on the environment are adequately considered before
actions are taken.
[28]
[47]
What
is more, s 24(7) of NEMA, to which the holder of a mining right is
expressly subject, provides that the procedures for the

investigation, assessment and communication of the potential impact
of activities must, at a minimum, provide for ‘co-ordination

and co-operation between organs of state in the consideration of
assessments where an activity falls under the jurisdiction of
more
than one organ of state’.
[29]
This is a powerful indicator that the MPRDA does not cover the
environmental impacts of mining; neither does it leave
decision-making
on those impacts solely to functionaries of the
DMR.
[48]
That
the MPRDA does not cover the field, is made even clearer in
ss 24(8)
(a)
,
24K and 24L of NEMA. These provisions were inserted by s 2 of the
2008 NEMA Amendment Act
[30]
(ie
after the enactment of the MPRDA) and came into effect on 1 May 2009.
Section 24(8)
(a)
of NEMA provides that authorisations obtained under any other law
(such as the MPRDA) for an activity listed in terms of NEMA,
do not
absolve an applicant from obtaining authorisation under NEMA:
‘
Authorisations
obtained under any other law for an activity listed or specified in
terms of this Act does not absolve the applicant
from obtaining
authorisation under this Act unless an authorisation has been granted
in the manner contemplated in section 24L.’
[49]
Section
24L(1) of NEMA provides for the alignment of environmental
authorisations. More specifically, it states that where a listed

activity contemplated in s 24 of NEMA is also regulated in terms of
another law, the authority empowered under that other law to

authorise that activity and the competent authority authorised to
issue an environmental authorisation under NEMA, may exercise
their
respective powers jointly by issuing separate authorisations or an
integrated environmental authorisation.
[31]
This, however, does not remove the requirement of an environmental
authorisation under NEMA to conduct a listed activity.
[32]
In terms of s 24L(4), a competent authority empowered to issue
an environmental authorisation under NEMA may regard an authorisation

in terms of any other legislation that meets the requirements of
NEMA, as an environmental authorisation under NEMA.
[50]
Section
24K(1) of NEMA authorises the Environment Minister or an MEC
responsible for environmental affairs to ‘consult with
any
organ of state responsible for administering legislation relating to
any aspect of an activity that also requires environmental

authorisation under [NEMA] in order to coordinate the respective
requirements of such legislation and to avoid duplication’.
[51]
What
all of this shows, is that the provisions of NEMA apply alongside
those of the MPRDA relating to mining rights and EMPs, and
there is
no basis to restrict the application of Chapter 5 of NEMA, as Tendele
seeks to do. The two laws serve different purposes
within the
competence of the authorities responsible for their administration.
Maccsand
illustrates
the point.
[33]
A company,
Maccsand, had been granted a mining right to mine under the MPRDA. In
terms of that right it was authorised to enter
and bring on to the
relevant land, equipment and materials to construct surface,
underground or undersea infrastructure required
for the purposes of
mining. Maccsand contended that because it had various rights under
the MPRDA, it did not need to obtain planning
consent by the City of
Cape Town under the Land Use Planning Ordinance 15 of 1985. Rejecting
this contention, the Constitutional
Court said:
‘
If
it is accepted, as it should be, that LUPO regulates municipal land
planning and that, as a matter of fact, it applies to land
which is
the subject matter of these proceedings, then it cannot be assumed
that the mere granting of a mining right cancels out
LUPO’s
application. There is nothing in the MPRDA suggesting that LUPO will
cease to apply to land upon the granting of a
mining right or permit.
By contrast, section 23(6) of the MPRDA proclaims that a mining right
granted in terms of that Act is subject
to it and other relevant
laws.’
[34]
[52]
Moreover,
the high court’s interpretation is inconsistent with the
constitutional injunction to interpret statutes in a way
that gives
the right to protection of the environment its fullest possible
effect. The principles in s 2 of NEMA must guide the
interpretation,
administration and implementation of NEMA and any other law concerned
with environmental protection or management,
such as the MPRDA: not
the other way around. Otherwise construed, NEMA is deprived of direct
force in relation to mining activities,
and effectively sidestepped.
Its mandatory principles would then only be applied insofar as they
are reflected in the MPRDA
and the separate environmental
authorisation required for listed activities in s 24(2) of NEMA,
would be rendered nugatory.
[53]
This
interpretation, contrary to Tendele’s assertion and the high
court’s finding, does not result in a ‘duplication’

of regulatory functions, nor ‘competing and contradictory but
mandatory directions’ by regulatory authorities. As shown

above, s 24K(1) of NEMA refutes any duplication argument. In any
event a similar argument was rejected in
Maccsand
:
[35]
‘
Another
criticism levelled at the finding of the Supreme Court of Appeal by
Maccsand and the Minister for Mineral Resources was
that, by
endorsing a duplication of functions, the Court enabled the local
sphere to veto decisions of the national sphere on a
matter that
falls within the exclusive competence of the national sphere. At face
value this argument is attractive but it lacks
substance. The
Constitution allocates powers to three spheres of government in
accordance with the functional vision of what is
appropriate to each
sphere. But because these powers are not contained in hermetically
sealed compartments, sometimes the exercise
of powers by two spheres
may result in an overlap. When this happens, neither sphere is
intruding into the functional area of another.
Each sphere would be
exercising power within its own competence. It is in this context
that the Constitution obliges the spheres
of government to cooperate
with one another in mutual trust in good faith, and to coordinate
actions taken with one another. The
fact that in this case mining
cannot take place until the land in question is appropriately rezoned
is therefore permissible in
our constitutional order. It is proper
for one sphere of government to take a decision whose implementation
may not take place
until consent is granted by another sphere, within
whose area of jurisdiction the decision is to be executed. If consent
is, however,
refused it does not mean that the first decision is
vetoed. The authority from whom consent was sought would have
exercised its
power, which does not extend to the power of the other
functionary. This is so in spite of the fact that the effect of the
refusal
in those circumstances would be that the first decision
cannot be put into operation. This difficulty may be resolved through
cooperation
between the two organs of state, failing which, the
refusal may be challenged on review.’
[54]
In
Fuel
Retailers
,
[36]
the issue was whether environmental authorities had considered the
social, economic and environmental impacts of constructing a
filling
station. In resisting an application to review and set aside its
decision authorising the construction of the filling station,
the
relevant government department contended that issues of need and
desirability had been considered by the local authority when
it
decided the application to rezone the property for the purpose of
constructing the filling station.  Therefore, so it was

contended, the local authority did not have to reassess those issues.
The Constitutional Court rejected this contention and held
that each
functionary operates within the purpose and ambit of its own enabling
statutory provisions when taking administrative
action. Thus, the
satisfaction of the requirements of a specific section or Act does
not equate to satisfaction of a similar requirement
in a different
section or Act. The court said:
‘
The
environmental authorities assumed that the duty to consider need and
desirability in the context of the Ordinance imposes the
same
obligation as the duty to consider the social, economic and
environmental impact of a proposed development as required by
the
provisions of NEMA. They were wrong in that assumption.’
[55]
It
follows that the decision to grant a mining right and approve an EMP
in terms of the MPRDA, may not be implemented without an

environmental authorisation, if the holder of that right and EMP
undertakes a listed activity as envisaged in NEMA. The presumption

against the retrospective operation of statutes simply does not
arise: the requirement of an environmental authorisation under
NEMA
does not take away or impair Tendele’s mining right or EMP
under the MPRDA.
[37]
[56]
This
is confirmed by the language of the transitional provisions
themselves. The relevant provisions of s 12 of the 2008 NEMA
Amendment
Act, as amended by Act 25 of 2014 provide:
‘
(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 [MPRDA] 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.’
[57]
Three
points should be made. First, the transitional provisions do not
dispense with an environmental authorisation as a prerequisite
for
undertaking a listed activity: the opposite is true. Second, an EMP
approved under the MPRDA does not have the status of an
environmental
authorisation under NEMA. That much is clear from the definitions in
NEMA.
[38]
And third, s 12(4)
means no more than that an EMP approved under the MPRDA must be
accepted as an EMP issued in terms of NEMA.
An EMP is but one of the
prescribed environmental management instruments referred to in
s 24(5) of NEMA. Put differently,
the introduction of the One
Environmental System with effect from 8 December 2014, did not
retroactively deprive Tendele of its
EMPs approved under the MPRDA.
The
Minister’s failure to act: a relevant consideration?
[58]
In
support of its finding that Tendele’s EMPs were valid under the
transitional provisions, the high court referred to the
Environment
Minister’s power under s 12(5) of the 2008 NEMA Amendment Act
to direct the holder of an old order mining right
to upgrade an EMP
to address any deficiencies that may lead to unacceptable
environmental consequences. The court said:
‘
To
date the Minister has not acted against Tendele in terms of s 12(5)
of the NEMA Amendment Act, 2008. This suggests to me that
the
Minister is thus far satisfied about Tendele’s approved EMPs
and the manner in which it conducts its mining operations
at Somkhele
. . .
It
seems to me that the Minister is well aware of Tendele’s
operations at Somkhele and that they are conducted in terms of

approved EMPs. He also seems to be satisfied that such EMPs
adequately address the environmental impacts of such operations at

Somkhele. If the Minister was not so satisfied he would not have
granted Tendele further mining rights as he did in 2016 to expand
its
mining operations in Reserve 3.’
[59]
The
high court erred. It is impermissible to interpret a statute
according to the conduct or practice of a government functionary.
The
Constitutional Court put it thus:
[39]
‘
Missing
from this formulation is any explicit mention of a further
fundamental contextual change, that from legislative supremacy
to
constitutional democracy. Why should a unilateral practice of one
part of the executive arm of government play a role in the

determination of the reasonable meaning to be given to a statutory
provision? It might conceivably be justified where the practice
is
evidence of an impartial application of a custom recognised by all
concerned, but not where the practice is unilaterally established
by
one of the litigating parties. In those circumstances it is difficult
to see what advantage evidence of the unilateral practice
will have
for the objective and independent interpretation by the courts of the
meaning of legislation, in accordance with constitutionally
compliant
precepts. It is best avoided.’
[60]
For
the above reasons, and having regard to the language, context and
purposes of the relevant statutory provisions,
[40]
I
have come to the conclusion that environmental authorisation to
conduct a listed activity, in terms of s 24(2) of NEMA, is a
requirement for mining. Consequently, Tendele’s mining
operations are unlawful. The appropriate relief is set out below.
Land
use approvals
[61]
The
appellants’ case that Tendele’s mining activities are
unlawful because it has not obtained municipal approval for
its
mining operations, may be outlined as follows. Tendele does not have
municipal approval to develop the land on which it conducts
mining
operations, as contemplated in s 38 of the KwaZulu-Natal Planning and
Development Act 6 of 2008 (the KZN Planning Act).
Section 48(3) of
that Act prohibits any development without municipal approval.
Tendele also does not have permission to use the
land (Reserve No 3)
for ‘mining purposes’ as envisaged in the Spatial
Planning and Land Use Management Act 16 of 2013
(SPLUMA). It also
requires approval of a ‘mining operation’ as defined in
Schedule 2 to the Mtubatuba SPLUMA By-Law
of January 2017 (The
Mtubatuba By-Law).
[62]
In
this Court the appellants accepted that the KZN Planning Act which
came into force on 1 May 2010, and SPLUMA, which commenced
on 1 July
2015, do not apply retrospectively. Accordingly, mining operations by
Tendele prior to the commencement of these statutes
are lawful. This
however, so it was contended, does not apply to new mining which may
be conducted after the commencement of the
KZN Planning Act and
SPLUMA, in terms of the mining right granted to Tendele in 2016.
[63]
Section
38(1) KZN Planning Act provides:
‘
The
development of land situated outside the area of the scheme may only
occur to the extent that it has been approved by the municipality
in
whose area the land is situated.’
Section
38(3) defines ‘development’ as follows:
‘
[T]he
carrying out of building, construction, engineering, mining or other
operations on, under or over any land, and a material
change to the
existing use of any building or land without subdivision.’
[64]
It
is evident from this definition that the KZN Planning Act was not
intended to regulate existing mining. Tendele’s mining

operations do not fall within the definition of development in s
38(3), since it was already conducting mining operations on Reserve

No 3 when the KZN Planning Act came into force. That mining does not
constitute a material change to the existing use of land.
[65]
Aside
from this, it was not the appellants’ case that the exercise of
the mining right granted to Tendele in 2016 in respect
of Areas 4 and
5, would constitute a material change to the existing use of land.
Had such a case been pleaded, Tendele would have
been able to put up
evidence to show that the mining which is to take place in terms of
the Areas 4 and 5 right, does not constitute
a new use of land, but
merely an extension of the existing use of the same land, ie mining
on another portion of Reserve No 3;
or that future mining is related
to the mining that has been conducted at the mine to date.
[66]
The
same applies to the attack based on SPLUMA. It is unsustainable, both
on the pleadings and a proper construction of the relevant
statutory
provisions. In terms of s 26(2), land may be used only for the
purposes permitted by a land use scheme, by a town planning
scheme
(until such a scheme is replaced by a land use scheme), ‘or in
terms of subsection (3)’. Section 26(3) provides
for the
continuation, after the commencement of SPLUMA, of certain land uses
in specific circumstances:
‘
Where
no town planning or land use scheme applies to a piece of land,
before a land use scheme is approved in terms of this Act,
such land
may be used only for the purposes listed in Schedule 2 to this Act
and for which such land was lawfully used or could
lawfully have been
used immediately before the commencement of this Act.’
One
of the land use purposes listed in Schedule 2 is ‘mining
purposes’, defined in the Schedule as, ‘purposes
normally
or otherwise reasonably associated with the use of land for mining’.
[67]
Self-evidently,
the purpose of s 26(3) is to maintain the existing land use regime
applicable to land, in respect of which no town
planning scheme or
land use scheme applied when SPLUMA came into force, until a land use
scheme is approved in terms of SPLUMA.
It achieves this by permitting
the use of land for certain purposes to continue where such land was
lawfully being used for that
purpose immediately before commencement
of SPLUMA. It follows that the provisions of the Mtubatuba By-Law
cannot trump the provisions
of SPLUMA. Tendele’s mining
operations are not in breach of SPLUMA or the Mtubatuba By-Law.
Waste
Management
[68]
The
founding affidavit states that there are massive stockpiles of waste
rock at the mine and that Tendele’s mining activities
result in
liquid coal waste and coal sludge or slurry. The process of crushing
and washing coal produces liquid waste along with
huge stockpiles of
solid waste. Attached to the affidavit are photographs depicting huge
mining dumps and rock dumps. The appellants
alleged that the waste
produced by Tendele falls within the definition of ‘hazardous
waste’ in Schedule 3 to the Waste
Act, which includes ‘residue
stockpiles’ and ‘wastes from the pyrolytic treatment of
coal’.
[41]
The
concept ‘residue stockpile’ includes waste derived from a
mining operation and which is stockpiled, and wastes
resulting from
mining.
[42]
Tendele does not
have a waste management licence as required by the Waste Act and is
therefore mining illegally.
[69]
Section
20 of the Waste Act provides that no person may commence, undertake
or conduct a waste management activity, except in accordance
with a
waste management licence or the requirements or standards determined
in terms of s 19(3). A ‘waste management activity’
is
defined as an activity listed in Schedule 1 or published by notice in
the Gazette under s 19.
[70]
In
terms of s 19 of the Waste Act, the Environment Minister on 29
November 2013, published a list of waste management activities
that
have or are likely to have a detrimental effect on the environment
(the 2013 listing notice). Regulation 7(1) of the 2013
listing notice
states:
‘
A
person who lawfully conducts a waste management activity listed in
this schedule on the date of the coming into effect of this
notice
may continue with the waste management activity until such time that
the Minister by notice in the Gazette calls upon such
person to apply
for a waste management licence.’
[71]
It
was argued on behalf of the appellants that the high court’s
conclusion that Tendele’s conduct was lawful because
the
Minister had not called upon it to apply for a waste management
licence, was wrong because it incorrectly ascribed to the Minister

the power to determine the legality of Tendele’s conduct. This,
so it was argued, undermines the judicial function: the courts
should
determine the legality of conduct. It was also argued that regulation
7(1) cannot, in effect, immunise Tendele against obtaining
a waste
management licence, especially where this occurs due to the inaction
of the Minister.
[72]
These
arguments, however, do not assist the appellants, for two reasons.
The first is that a notice of waste management activities
in terms of
s 19(1) of the Waste Act, ‘may contain transitional and other
special arrangements in respect of waste management
activities that
are carried out at the time of their listing’.
[43]
Regulation 7(1) is thus specifically authorised. The second is that
the appellants have not challenged the constitutionality of

regulation 7(1). This regulation is not void or non-existent, but
exists as a fact and remains lawful until it is set aside.
[44]
The appellants have not established that Tendele is mining unlawfully
because it does not have a waste management licence.
Relocation
of traditional graves
[73]
Section
35 of the KZN Heritage Act provides that before any grave may be
damaged, altered, exhumed or removed, prior written consent
must be
obtained from AMAFA Heritage Council. The Council must be satisfied
that an applicant has made concerted efforts to engage
the relevant
communities affected, and that those communities have agreed to the
relocation of graves.
[45]
[74]
Ms
Shiela Berry, a trustee of the first appellant, in her affidavit
states that when Tendele started mining, there were many graves
on
the mining site which were exhumed and moved to another graveyard
with no regard for the Zulu people’s deep respect for
their
ancestors. This graveyard is situated on a slope, and some of the
graves have been undercut by rain and are slumping. In
some of the
graves body parts can be seen.
[75]
Mr
Du Preez states that Tendele ‘did not appreciate the process
that the mine was required to follow in order to relocate
traditional
graves’, and that its failure to obtain authorisation ‘was
due to a bona fide oversight’. This is
improbable. On its own
version, Tendele’s consultant, Groundwater Consulting Services
(GCS), had advised it in 2007 already,
that grave relocation needed
to be dealt with separately from a heritage impact assessment.
Tendele engaged AMAFA Heritage Council
only in 2017 – some 10
years later. In its report to Tendele in December 2007, GCS described
the importance of gravesites
to the community as follows:
‘
Many
of the local residents place great religious significance on
gravesites. This strong reverence for graves emerges from the
belief
that the spirit (ithongo or moya, in Zulu) of individual persons
continue to maintain an active interest in and affect the
living
(mostly relatives). Spirits of deceased relatives are referred to as
ancestors (ukhokho, in Zulu) and much of their interactions
with
their living descendants take place with reference to their graves.
Consequently, graves have developed into sites of particular
social
significance and not only stand as symbols of the relationship
between the living and the dead, but also represent a locale
where
these relationships can be articulated and find expression. It is
largely the practice of ancestor worship that has led graves
to
acquire a particularly strong cultural significance that they have.
Residents in the area regard ancestor worship as an ancient
religious
practice.’
[76]
It
appears from the answering papers that prior to consulting AMAFA
Heritage Council, Tendele had entered into detailed agreements
with
members of the community for the relocation of graves. In terms of
this agreement, the relatives of deceased persons were
paid an amount
of R8 500 ‘in respect of all Family Graves’, located in
the mining area. The agreement states that ‘“all
Family
Graves” means the total of all graves [of relatives of the
person concluding the agreement] located at the Premises’.
[77]
The
answering affidavit states that all relocations of traditional graves
have taken place in consultation with the affected families
and
communities, and that Tendele has engaged in consultations with AMAFA
Heritage Council to ensure that its conduct in relation
to
traditional graves complies with the law. At a meeting with the
Council on 8 May 2017, Tendele gave an undertaking that in future,
no
graves would be exhumed or relocated without the necessary permits.
[78]
On
the strength of this undertaking and Tendele’s engagements with
AMAFA Heritage Council, the high court stated that the
Council ‘would
have said something regarding Tendele’s conduct if it was not
satisfied with the manner in which traditional
graves were being
relocated’. It held that the appellants failed to make out a
proper case for an interdict.
[79]
Whether
the relocation of graves is unlawful cannot be decided by reference
to the view taken by the AMAFA Heritage Council. It
is common ground
that Tendele has removed or altered traditional graves in violation
of the KZN Heritage Act. That plainly, was
unlawful. It is conduct
grossly inconsistent with the Constitution, and invalid.
[80]
Given
the particular circumstances of this case, it is my considered view
that although the appellants asked for an interdict in
the notice of
motion, a declaratory order would constitute appropriate relief.
[46]
This order should not be suspended, since Tendele does not conduct
unplanned mining. It must know in advance which graves need
to be
relocated and it has demonstrated that it is able to comply with the
provisions of the KZN Heritage Act.
Relief
[81]
The
appellants sought an order interdicting Tendele from carrying on with
any mining operations in Areas 1, 2 and 3 on Reserve No
3; the
KwaQubuka and Luhlanga areas on Reserve No 3; and one part of the
remainder of Reserve No 3, ‘until further order’
of the
high court. Although the appellants did not ask for a declaratory
order, such an order would be just and equitable in the

circumstances, for the reasons stated below.
[82]
Section
172(1)
(a)
of
the Constitution applies. It provides that conduct inconsistent with
the Constitution must be declared invalid. The court has
no
discretion. In terms of s 172(1)
(b)
the court has a discretion to grant just and equitable relief, either
independently or together with a declaratory order.
[47]
The power in s 172(1)
(b)
to make any order that is just and equitable is not limited to
declarations of invalidity; and ‘is so wide and flexible

that it allows Courts to formulate an order that does not follow
prayers in the notice of motion’.
[48]
[83]
In
the exercise of this wide remedial power, the Constitutional Court
has highlighted the need for courts to be pragmatic in crafting
just
and equitable remedies.
[49]
A
pragmatic approach that grants effective relief – that upholds,
enhances and vindicates the underlying values and rights
entrenched
in the Constitution
[50]
–
and which will allow Tendele, the primary employer in Mtubatuba, to
continue mining while it brings itself into compliance
with NEMA, is
called for in this case.
[84]
If
Tendele’s mining operations are brought to a grinding halt,
this would have catastrophic consequences. The mine is the
primary
driver of economic activity in Mtubatuba. It employs over 1000 people
and 83% of its employees live in the Mpukunyoni area
surrounding the
mine. According to the Integrated Development Plan of the Mtubatuba
Municipality, mining is one of the major employment
sectors in the
municipality; and the unemployment rate in the area which previously
was at 59.7%, had improved to 39% in 2011,
as a result of the mining
operations at Somkhele.
[85]
The
Mpukunyoni
amici
submitted that if mining operations were to stop, the South African
anthracite market would be wiped out, which would have a knock-on

effect on the ferrochrome industry that employs more than 20,000
people and is a major exporter in the South African economy. Tendele

has also made significant investments in the development of the area,
which include the provision of apprenticeships, training
in farming
activities, adult basic education and training, bursaries and student
teachers. Between December 2006 and December 2016,
Tendele spent R719
million on local community employee salaries; R54 million on
community projects in accordance with approved
social and labour
plans annexed to the Tendele mining rights; and R300 million on
procuring services from community-based black
economic empowerment
companies.
[86]
The
termination of mining operations, even temporarily, would be the
death knell of the Mtubatuba economy and would result in the
loss of
the livelihood of the Mpukunyoni community, together with significant
benefits described above. For these reasons, Tendele
and the
Mpukunyoni
amici
have
asked this Court to grant Tendele an opportunity to regularise its
position in relation to the requisite statutory approvals.
Costs
[87]
The
high court stated that there was ‘no reason why costs should
not follow the result’ and ordered the appellants to
pay
Tendele’s costs. Tendele has since abandoned the costs order.
However, a notice of abandonment does not overturn the
judgment of
the court a quo, which remains on the public record and is available
to persons researching or seeking a direction
on costs in an
environmental law dispute. There is no public record that the costs
order was abandoned.
[88]
It
is trite that a judgment stands unless it is rescinded, or set aside
by an appellate court.  The abandonment of a judgment
is a
unilateral act which operates
ex
nunc
and not
ex
tunc
.
It precludes the party who has abandoned its rights under the
judgment from enforcing it, but the judgment still exists
with all
its intended legal consequences.
[51]
[89]
An
award of costs involves the exercise of a discretion. It is a settled
principle that an appellate court does not lightly interfere
with the
exercise of a true discretion, unless it is shown that the discretion
was not exercised judicially, more specifically,
that the decision
could not reasonably have been reached by a court properly directing
itself to the relevant facts and principles.
[52]
The CER submitted that the high court did not exercise its discretion
judicially when it ordered the appellants to pay Tendele’s

costs, and that the costs order should be overturned whatever the
outcome of the appeal.
[90]
The
costs order not only has an obvious chilling effect on the
enforcement of a constitutional right,
[53]
but the high court also disregarded the protection against an adverse
costs order contained in NEMA itself. Section 32(2) states:
‘
A
court may decide not to award costs against the person who, or group
of persons which, fails to secure the relief sought in respect
of any
breach or threatened breach of any provision of this Act, including a
principle contained in Chapter 1, or of any provision
of a specific
environmental management Act, or any other statutory provision
concerned with the protection of the environment or
the use of
natural resources, if the court is of the opinion that the person or
group of persons acted reasonably out of a concern
for the public
interest or in the interest of protecting the environment and had
made due efforts to use other means reasonably
available for
obtaining the relief sought.’
[91]
It
is clear from the founding papers that the appellants were seeking to
enforce the right to have the environment protected, contained
in s
24 of the Constitution, as well as the provisions of NEMA and various
other environmental management statutes. The application
for the
interdict was brought in the public interest, the interests of the
people residing in the vicinity of the mine affected
by mining
operations and in the interests of the appellants’ members, as
envisaged in s 38 of the Constitution.
[92]
In
the light of the facts and principles outlined above, the order
directing the appellants to pay Tendele’s costs is not
one that
could reasonably have been made. The high court failed to exercise
its discretion judicially and the costs order must
be set aside.
[93]
In
the result, I would make the following order:
1
The appeal succeeds with costs,
including the costs of two counsel.
2
The order of the high court is set aside and replaced with the
following:
‘
2.1
It is declared that the commencement or continuation of mining
operations by the first respondent on the properties listed below

(the properties) is unlawful and unconstitutional, unless and until
it has been granted an environmental authorisation in terms
of the
National Environmental Management Act 107 of 1998 (NEMA), to
undertake the relevant listed activities contained in
the
List of Activities and Competent Authorities Identified in terms of
Sections 24(2) and 24D of NEMA, published under Government
Notices
R983, 984 and 985, in
Government
Gazette
38282 of 4 December 2014:
(a)
Area
1 on Reserve No 3 (Somkhele) No 15822, measuring 660.5321 hectares as
described in the mining right dated 22 June 2007;
(b)
Areas
2 and 3 on Reserve No 3 (Somkhele) No 15822, measuring 779.8719
hectares as described in the mining right dated 30 March 2011;
(c)
The
KwaQubuka and Luhlanga areas on Reserve No 3, measuring 706.0166
hectares as described in the mining right dated 8 March 2013;
(d)
Areas
4 and 5 on part of the remainder of Reserve No 3 No 15822, in extent
to 21233.0525 hectares as described in the mining right
dated 26
October 2016.
2.2
It is declared that the first respondent’s commencement or
continuation of mining operations on the properties
is unlawful and
unconstitutional, unless and until it has obtained written approval
in terms of s 35 of the KwaZulu-Natal Heritage
Act 4 of 2008 to
damage, alter, exhume or remove any traditional graves from their
original positions.
2.3
The order in paragraph 2.1 above is suspended for a period of 12
months to enable the first respondent to obtain
the requisite
environmental authorisation. In the event that the first respondent
does not obtain that authorisation within the
said period, it shall
be entitled to apply to this Court for an extension of the period,
setting out the steps taken to obtain
environmental authorisation;
the status of that application; and why a further suspension of the
order in paragraph 2.1 is necessary.
2.4
The first respondent is ordered to pay the costs of the application,
including the costs of two counsel.’
__________________
A
SCHIPPERS
JUDGE
OF APPEAL
Ponnan
JA (Plasket and Nicholls JJA and Ledwaba AJA concurring):
[94]
Motion proceedings, said Harms DP in
National
Director of Public Prosecutions v Zuma
,
‘are all about the resolution of legal issues based on common
cause facts’.
[54]
He
added:
‘
Unless
the circumstances are special they cannot be used to resolve factual
issues because they are not designed to determine probabilities.
It
is well established under the
Plascon-Evans
rule
that where in motion proceedings disputes of fact arise on the
affidavits, a final order can be granted only if the facts
averred in
the applicant's (Mr Zuma’s) affidavits, which have been
admitted by the respondent (the NDPP), together with the
facts
alleged by the latter, justify such order. It may be different if the
respondent’s version
consists
of bald or uncreditworthy denials, raises fictitious disputes of
fact, is palpably implausible, far-fetched or so clearly
untenable
that the court is justified in rejecting them merely on the papers.’
[95]
In motion proceedings, the affidavits constitute both the pleadings
and the evidence.
[55]
The
issues and averments in support of a party’s case should appear
clearly therefrom.
[56]
They
serve, not just to define the issues between the parties, but also to
place the essential evidence before the court. An
applicant must
therefore raise in the founding affidavit the issues as well as the
evidence upon which it relies to discharge the
onus of proof resting
on it.
[96]
It is impermissible for an applicant in motion proceedings to make
out a new case in reply. As Cloete JA pointed
out in
Minister
of Land Affairs and Agriculture v D & F Wevell Trust,
‘[t]he
reason is manifest ─ the other party may well be prejudiced
because evidence may have been available to it to
refute the new case
on the facts. The position is worse where the arguments are advanced
for the first time on appeal’.
[97]
In my view, this is precisely such a case. Seegobin J appeared to
recognise as much in his judgment on the application
for leave to
appeal,
[57]
when he observed:
‘
I
immediately point out that the applicants’ case was very poorly
pleaded on the papers. This much was fairly and properly
conceded by
Mr Ngcukaitobi in the present application. The applicants had simply
failed to make out a proper case for an interdict
in their founding
papers. I considered that the factual allegations relied on were, for
the most part, incorrect and unsubstantiated.
The application was
accordingly dismissed for the reasons set out in the judgment.’
[98]
That, ought to have led to the dismissal of the application for leave
to appeal. Surprisingly, it did not. The
learned judge proceeded to
hold:
‘
Despite
the difficulties in the papers and my misgivings about the
applicants’ prospects, I have listened intently to the

submissions advanced by all counsel in the present application. In
view of the various pieces of legislation involved as well as
issues
of interpretation and questions of legality that may arise I am
persuaded that an appeal would have reasonable prospects
of success.
I also consider that it may also be in the public interest to have
some finality on the issues raised by the applicants.
For these
reasons I am persuaded that leave to appeal should be granted.’
[58]
[99]
If, indeed, the appellants ‘had simply failed to make out a
proper case’ in their founding papers for
the relief sought, it
is difficult to comprehend why the learned judge took the view that
the matter was nonetheless deserving
of the attention of this Court.
If, as he correctly points outs, the factual allegations relied upon
by the appellants were, ‘for
the most part, incorrect and
unsubstantiated’, that, one would have thought, would have been
the end of the matter.
[100]
Seegobin J felt impelled to grant leave to the appellants to appeal,
because in his view there were ‘issues of interpretation
and
questions of legality that may arise’.  What those were,
he did not elaborate. And, how one would get to those issues,
given
the evident unreliability of the appellants’ allegations,
remained unexplained. Despite this, my colleague Schippers
JA
inclines to the view that the appeal must succeed. Needless to say, I
do not agree.
[101]
The appellants seek an order interdicting the first respondent
(Tendele), from conducting mining operations at its Somkhele
mine.
They contend that Tendele is mining without the necessary statutory
authorisations and approvals. The interdict sought is
far reaching.
If granted, it would have the effect of closing Tendele’s
operations. More the reason, one would think, for
a proper case to
have been made out on the papers.
[102]
The appellants say that Tendele’s current mining operations are
unlawful because it has no: (i) environment authorisation
issued in
terms of s 24 of the National Environmental Management Act 107 of
1998 (NEMA); (ii) land use authority, approval or permission
from any
municipality having  jurisdiction; (iii) waste management
licence issued by the fourth respondent, the Minister of

Environmental Affairs (the Minister) in terms of s 43 of the National
Environmental Management: Waste Act 59 of 2008 (the Waste
Act); and
(iv) written approval in terms of s 35 of the KwaZulu-Natal Heritage
Act 4 of 2008 (the KZN Heritage Act) to damage,
alter, exhume or
remove any traditional graves.
[103]
Tendele began its mining operations in 2006 pursuant to the grant of
an ‘old order’ mining licence and subsequently
a mining
right, and the approval of an Environmental Management Programme
(EMP), granted and approved in terms of the Mineral and
Petroleum
Resources Development Act 28 of 2002 (the MPRDA). The Somkhele Mine
comprises a single mining area on Reserve No 3. However,
the mining
operations are divided amongst five areas and separate mining rights
and EMP’s apply to the different areas. The
mining right in
respect of Area 1 was granted to Tendele on 21 May 2007. The EMP
applicable to the Area 1 mining right was approved
on 22 June 2007.
The Areas 2 and 3 converted mining right was granted to Tendele on 1
February 2011. On 8 March 2013, the right
was amended to include the
KwaQubuka and Luhlanga areas. The EMP attaching to the mining right
of Areas 2 and 3 was approved on
30 March 2011. Amendments to this
EMP, to cater for the inclusion of the KwaQubuka and Luhlanga areas
were approved on 29 May 2012.
The Areas 4 and 5 mining right was
granted on 31 May 2016. The EMP applicable to this right was approved
on 26 October 2016.
[104]
Tendele is only actively mining in Area 1 and the extended area of
Area 2, namely, the KwaQubuka and Luhlanga areas. The Mine’s

coal wash plants are located in Area 2. Mining operations are not
being undertaken in Area 3. Mining operations ceased in Area
2 in
January 2012, due to depletion of the anthracite reserves. Mining
operations have not yet started in Areas 4 and 5. The second
and
third appellants have launched review proceedings to, inter alia, set
aside the mining right granted in respect of Areas 4
and 5.
[105]
The appellants seek to interdict all of Tendele’s mining
operations, until it has obtained the authorisations referred
to in
paragraph 96 above, which it says are required. In the view that I
take of the matter, which is evidently much narrower than
that of my
colleague, Schippers JA, the high court correctly refused to grant
the relief sought.
As
to (i)
[106]
The appellants contend that Tendele is mining unlawfully because no
environmental authorisation as contemplated by NEMA has
been issued
to it. According to the appellants, such environmental authorisation
was required both prior to 8 December 2014, when
the One
Environmental System was introduced and, after that date.
[107]
The question of whether Tendele was required to obtain an
environmental authorisation as required by s 24F(1)
(a)
of NEMA does not arise on the papers, because the appellants failed
to allege that Tendele is conducting any of the listed activities
at
Somkhele. The appellants’ founding affidavit lacks the
necessary allegations to sustain this ground of unlawfulness. Section

24F(1)
(a)
of
NEMA prohibits the commencement of ‘listed activities’ in
the absence of environmental authorisation. Listed activities
are
those identified in terms of s 24(2).
[108]
Acting in terms of this section (and its predecessor, s 21 of the
Environment Conservation Act 73 of 1989 (the ECA)), the
Minister
identified the activities that may not commence without environmental
authorisation. Since the first list of activities
was published in
terms of the ECA on 5 September 1997, the list of activities has been
replaced and amended on several occasions.
New activities have been
added; the definition of certain activities has been amended and some
activities have been removed.
[109]
Any allegation that Tendele has breached s 24F(1)
(a)
of NEMA,
at a bare minimum, had to identify: (a) the listed activity alleged
to have been commenced without environmental authorisation;
and (b)
the date on which that activity commenced. The appellants did not
plead these essential facts in their founding affidavit.
The sum
total of the appellants’ evidence in the founding affidavit on
this score was the following:
‘
Normally
speaking, mining is a listed activity which has an impact on the
environment and as such an Environmental Authorisation
(“EA”)
must be obtained in terms of the National Environmental Management
Act 107 of 1998 (NEMA).’
[110]
Tendele’s
answering affidavit set out why, as a matter of law,
it contended
that there is no requirement for environmental authorisation for its
mining operations. It also pointed out that,
under the ECA,
authorisation under any environmental legislation was not required
for mining operations or activities directly
related thereto. Given
the case that it was called upon to answer, Tendele’s answering
affidavit was a perfectly legitimate
response. It bore no onus or
evidentiary duty.
[111]
In their replying affidavit, the appellants stated:
‘
It
is accepted that there are no listed activities related to “mining”
as a special category. However, there are a host
of listed activities
which relate to mining. These are set out in a table which is
annexure ‘R1’ hereto.’
That
was the high-water mark of the appellants’ case. Annexure R1
contains a list of the activities requiring environmental

authorisation under NEMA. The appellants made no effort, even in
reply, to identify which of the activities Tendele was allegedly

undertaking, nor when Tendele allegedly commenced them.
[112]
Indeed, as pointed out in
Minister of Land Affairs and Agriculture
v D & F Wevell Trust
:
‘
It
is not proper for a party in motion proceedings to base an argument
on passages in documents which have been annexed to the papers
when
the conclusions sought to be drawn from such passages have not been
canvassed in the affidavits . . . A party cannot be expected
to trawl
through lengthy annexures to the opponent’s affidavit and to
speculate on the possible relevance of facts therein
contained. Trial
by ambush cannot be permitted.’
[59]
[113]
In any event, by the time of the replying affidavit it was already
too late. These are the kinds of allegations that should
have been
included in the founding affidavit so that Tendele could answer them.
On appeal, the appellants try to escape this difficulty
by casting a
duty or onus on Tendele to have supplied the missing allegations,
either in its answering affidavit or the correspondence.
They say
that it was clear from the pre-litigation correspondence that the
appellants lacked sufficient detail to enumerate which
activities
triggered specific listed activities; that it was common cause from
the correspondence that Tendele was conducting listed
activities and,
that Tendele ought to have denied that it was engaged in any listed
activities or explained what listed activities
it was undertaking.
But, that is to cast a duty on Tendele that, in law, it simply did
not bear.
[114]
The appellants submit that Tendele ought to have supplied the
allegations that were missing from the founding affidavit, because

those facts were peculiarly within Tendele’s knowledge. In
support of this proposition, they rely on
Wightman
t/a J W Construction v Headfour (Pty) Ltd and Another
.
[60]
But
Wightman
does
not assist them. As it was put in
Wightman
,
‘[w]hen the facts averred are such that the disputing party
must necessarily possess knowledge of them and be able to provide
an
answer’,
[61]
a bare
denial will not suffice to create a dispute of fact. However, as
Wightman
made
plain: ‘[t]here will of course be instances where a bare denial
meets the requirement because there is no other way open
to the
disputing party and nothing more can therefore be expected of
him’.
[62]
This is
precisely such a situation. There was nothing to deny because the
appellants did not aver sufficient facts that called
for more. If
anything, they were mistaken about the elements of their cause of
action. In the circumstances, Tendele had no duty
to supply the
missing allegations.
[115]
It follows that on the papers as they stand, one simply does not get
to the issue of the proper interpretation of NEMA.
As
to (ii)
[116]
The appellants contend that Tendele is undertaking mining operations
in contravention of the KwaZulu-Natal Planning and Development
Act 6
of 2008 (the KZN Planning Act) and the Spatial Planning and Land Use
Management Act 16 of 2013 (SPLUMA). The appellants accept
that the
KZN Planning Act and SPLUMA do not apply to any of Tendele’s
operations that occurred prior to the commencement
of those statutes.
They now limit their attack to mining, which they say, will occur in
the future in respect of the mining right
of Areas 4 and 5. In heads
of argument filed on behalf of the appellants, it is contended that
the use of the land covered by the
Areas 4 and 5 mining right ‘to
commence mining would be to convert that land to a new purpose by
“making use of its
resources”’.
[117]
The contention is unsustainable. In the first place, it was not
pleaded by the appellants. As a result, the necessary factual

allegations are nowhere to be found in the appellants’
affidavits. Tendele was also never afforded an opportunity to respond

to such a case. In the second place, the appellants’ contention
treats the mining that will occur in Areas 4 and 5 in the
future as
if unrelated to the mining that has occurred to date at Somkhele. As
explained above, the Somkhele Mine (including the
area forming the
subject of the Areas 4 and 5 mining right) comprise a single mining
area on Reserve No 3. Tendele’s mining
operations commenced on
Reserve No 3 in 2006 before both the KZN Planning Act and SPLUMA
commenced.
[63]
[118]
Be that as it may, two of the relevant local municipalities have
confirmed that no planning approval or land use approval
is required
for the continuation of mining operations by Tendele.
As
to (iii)
[119]
The appellants contend that Tendele’s operations are unlawful
as it does not have a waste management licence for its
activities as
required by the Waste Act. The appellants failed to identify any
aspect of Tendele’s operations that would
require a waste
management licence. This ground of alleged unlawfulness is
accordingly unsustainable on the pleadings.
[120]
That aside, in terms s 20 of the Waste Act, no person may commence,
undertake or conduct a waste management activity except
in accordance
with a waste management licence or the requirements or standards
determined in terms of s 19(3). A ‘waste management
activity’
is defined in s 1 as any activity listed in Schedule 1 or published
by notice in the Gazette under s 19. Section
19 empowers the Minister
by notice in the Gazette to publish a list of waste management
activities. On 29 November 2013 the Minister
published the list of
waste management activities (the 2013 notice) that have or are likely
to have a detrimental effect on the
environment.
[64]
The 2013 notice contains transitional provisions, the purpose of
which is to regularise the affairs of persons who were in the
process
of conducting waste management activities at the time of the
publication of the notice.
[121]
Regulation 7(1) of the 2013 notice provides:
‘
A
person who lawfully conducts a waste management activity listed in
this Schedule on the date of the coming into effect of this
Notice
may continue with the waste management activity until such time that
the Minister by notice in a
Gazette
calls upon such person to apply for a waste management licence.’
Tendele’s
mining operations and any waste management activity that it was
conducting, were being lawfully conducted in terms
of its mining
rights and approved EMP’s at the time of the coming into effect
of the 2013 notice. Tendele was therefore entitled
to continue
conducting such activity, until called upon by the Minister to apply
for a waste management licence. The Minister has
not called upon
Tendele to do so.
[122]
Moreover, the interdict that the appellants seek is plainly too broad
in relation to the right sought to be protected. The
alleged
unauthorised undertaking of waste management activities in terms of
the Waste Act could not possibly entitle the appellants
to an
interdict shutting down Tendele’s entire mining operation. At
best, they would only be entitled to relief in respect
of a specified
listed activity, assuming that such activity had been identified in
their pleadings, which, as already stated, the
appellants had failed
to do.
As
to (iv)
[123]
Tendele accepts that it has previously removed or altered traditional
graves, without being in possession of the necessary
authorisations
from the Amafa aKwaZulu-Natali Heritage Council (Amafa). It points
out in its answering affidavit that it has since
taken steps to
rectify its past failures. Tendele details a series of engagements
between it and Amafa, which has not been meaningfully
disputed by the
appellants in reply.
[124]
Tendele stated in its answering affidavit:
‘
There
is no reasonable apprehension that Tendele will in future alter,
relocate, damage or exhume any traditional graves without
the
necessary authorization from Amafa. Tendele has unequivocally
committed itself to working with Amafa and the community to ensure

that future relocations comply with the letter and the spirit of the
law.
I
am advised and accordingly submit that the [appellants’]
complaints about Tendele’s conduct in relation to traditional

graves does not entitle them to any interdictory relief, far less an
interdict against the entire mining operation at Somkhele.’
[125]
As it was put in
National Council of Societies for the Prevention
of Cruelty to Animals v Openshaw
:
‘
An
interdict is not a remedy for past invasion of rights but is
concerned with present or future infringements. It is appropriate

only when future injury is feared. Where a wrongful act giving rise
to the injury has already occurred, it must be of a continuing
nature
or there must be a reasonable apprehension that it will be
repeated.’
[65]
[126]
There are no facts in this matter that would justify any reasonable
apprehension that Tendele will again relocate or exhume
graves
without the appropriate approval. Moreover, here as well, even if the
appellants’ complaint were to be accepted, the
alleged
unauthorised removal of the traditional graves, could not possibly
entitle them to an interdict shutting down the entire
mining
operation.
[127]
In the result, I would dismiss the appeal. Tendele, commendably does
not seek costs.
_________________
V
M Ponnan
Judge
of Appeal
APPEARANCES
For Appellants:

T Ngcukaitobi SC
(with M
Mazibuko)
Instructed
by

Youens Attorneys, Pietermaritzburg
Phatshoane
Henney Attorneys, Bloemfontein
For Respondents

P Lazarus SC
N
Ferreira
Instructed by

Malan Scholes Inc, Johannesburg
Claude
Reid Inc, Bloemfontein
For
Amicus
Curiae
,
Centre for
Environmental Rights      M Du Plessis SC
T
Palmer
S
Lushaba
Instructed by

Centre for Environmental Rights, Cape
Town
Phatshoane Henney
Attorneys,
Bloemfontein
For
Amici Curiae
:
Mpukunyoni
Community
Mining
Forum

D Sibuyi
The
Association of Mine Workers
and
Construction Union

D Sibuyi
The
National Union of Mineworkers
D
Sibuyi
Instructed by

DMS Attorneys, Johannesburg
Pieter
Skein Attorneys, Bloemfontein
[1]
Minister
of Mineral Resources v Stern and Others; Treasure the Karoo Action
Group and Another v Department of Mineral Resources
and Others
[2019] ZASCA 99
;
[2019] 3 All SA 684
(SCA) para 21. The One
Environmental System is expressly recognised in s 50A(2) of NEMA,
which provides:
‘
Agreement
for the purpose of subsection (1) means the agreement reached
between the [Environment] Minister, the Minister responsible
for
water affairs and the Minister responsible for mineral resources
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 the principal Act [NEMA] and
that all
environmental provisions would be repealed from the Mineral and
Petroleum Resources Development Act, 2002;
(b)
that
the Minister sets the regulatory framework and norms and standards,
and that the Minister responsible for Mineral Resources
will
implement provisions of the principal Act and the subordinate
legislation as far as it relates to prospecting, exploration,
mining
or operations;
(c)
that
the Minister responsible for Mineral Resources will issue
environmental authorisations in terms of the principal Act for

prospecting, exploration, mining or operations, and that the
Minister will be the appeal authority for these authorisations;
and
(d)
that
the Minister, the Minister responsible for Mineral Resources and the
Minister responsible for Water Affairs agree on fixed
time-frames
for the consideration and issuing of the authorisations in their
respective legislation and agreed to synchronise
the time-frames.’
[2]
‘
The
Identification under Section 21 of Activities which may have a
Substantial Detrimental Effect on the Environment
GN
R1182,
GG
18261, 5 September 1997’ (as amended).
[3]
‘
List
of Activities and Competent Authorities Identified in terms of
Sections 24(2) and
24D
GN
R983, 984 and 985,
GG
38282, 4 December 2014’ (as amended).
[4]
Wightman
t/a J W Construction v Headfour (Pty) Ltd and Another
[2008] ZASCA 6
;
2008 (3) SA 371
(SCA) para 13.
[5]
Mineral
Sands Resources (Pty) Ltd v Magistrate for the District of
Vredendal, Kroutz NO and others
[2017] 2 All SA 599
(WCC) para 8.
[6]
Mineral
Sands
fn
5.
[7]
The
rule of law, enshrined in s 1 of the Constitution, requires that
legislation be enacted and publicised in a clear and accessible

manner to enable people to regularise their conduct and affairs
accordingly. A decision on the proper construction of NEMA is

necessary for mines to regulate their conduct and affairs lawfully.
[8]
Maccsand
(Pty) Ltd v City of Cape Town and Others
[2012] ZACC 7
;
2012 (4) SA 181
(CC) para 8.
Section
4 of the Mineral and Petroleum Resources Development Act 28 of 2002
(MPRDA) states that when construing its provisions,
any reasonable
interpretation consistent with its objects (which includes giving
effect to s 24 the Constitution) must be preferred.
Section
24 of the Constitution provides:
‘
Environment
Everyone has the
right–
(a)
to
an environment that is not harmful to their health or well-being;
and
(b)
to
have the environment protected, for the benefit of present and
future generations, through reasonable legislative and other

measures that–
(i)
prevent
pollution and ecological degradation;
(ii)
promote
conservation; and
(iii)
secure
ecologically sustainable development and use of natural resources
while promoting justifiable economic and social development.’
[9]
Investigating
Directorate: Serious Economic Offences and Others v Hyundai Motor
Distributors (Pty) Ltd and Others In re: Hyundai
Motor Distributors
(Pty) Ltd and Others v Smit NO and Others
[2000] ZACC 12
;
2001 (1) SA 545
(CC) para 23;
Independent
Institute of Education (Pty) Ltd v KwaZulu-Natal Law Society and
Others
[2019] ZACC 47
;
2020 (2) SA 325
(CC) paras 1-2.
[10]
Fuel
Retailers Association of Southern Africa v Director-General:
Environmental Management, Department of Agriculture, Conservation

and Environment, Mpumalanga Province and Others
2007 (6) SA 4
(CC) para 102.
[11]
Maccsand
fn 8 para 9, footnotes omitted.
[12]
Section
2(1) of NEMA provides:
‘
The
principles set out in this section apply throughout the Republic to
the actions of all organs of state that may significantly
affect the
environment and–
(a)
.
. .
(b)
serve
as the general framework within which environmental management and
implementation plans must be formulated;
(c)
serve
as guidelines by reference to which any organ of state must exercise
any function when taking any decision in terms of this
Act or any
statutory provision concerning the protection of the environment;
(d)
.
. .
(e)
guide
the interpretation, administration and implementation of this act,
and any other law concerned with the protection or management
of the
environment.’
[13]
Sections
2(4)
(a)
(vii)
and 2(4)
(a)
(viii).
[14]
Preamble
to NEMA.
[15]
Mineral
Sands Resources
fn 5 para 8.
[16]
‘
List
of Activities and Competent Authorities identified in terms of
sections 24
and
24D
of the
National Environmental Management Act,
1998
GN R387,
GG
28753,
21 April 2006’, items 7 and 8 of the Schedule.
[17]
Minister
of Mineral Resources v Stern and Others
fn 1 paras 44-45.
[18]
Section
24(1)
of NEMA.
[19]
Section
1
of NEMA. This definition was inserted by
s 1
(g)
of the N
ational
Environmental Management
Amendment
Act
62 of
2008.
[20]
Mineral
Sands Resources
fn 5 para 170.
[21]
The
Mineral and Petroleum Resources Development Regulations published
under ‘GN R527,
GG
26275, 23 April 2004’.
[22]
Section
39(3)
of the MPRDA provided:
‘
An
applicant who prepares an environmental management programme or an
environmental management plan must-
(a)
establish
baseline information concerning the affected environment to
determine protection, remedial measures and environmental
management
objectives;
(b)
investigate,
assess and evaluate the impact of his or her proposed prospecting or
mining operations on-
(i)
the
environment;
(ii)
the
socio-economic conditions of any person who might be directly
affected by the prospecting or mining operation; and
(iii)
any
national estate referred to in section 3 (2) of the National
Heritage Resources Act, 1999 (Act 25 of 1999), with the exception
of
the national estate contemplated in section 3 (2) (i) (vi) and (vii)
of that Act;
(c)
develop
an environmental awareness plan describing the manner in which the
applicant intends to inform his or her employees of
any
environmental risks which may result from their work in the manner
in which the risks must be dealt with in order to avoid
pollution or
the degradation of the environment; and
(d)
describe
the manner in which he or she intends to-
(i)
modify,
remedy, control or stop any action, activity or process which causes
pollution or environmental degradation;
(ii)
contain
or remedy the cause of pollution or degradation and migration of
pollutants; and comply with any prescribed waste standard
or
management standards or practices.’
[23]
Mineral
Sands Resources
fn 5 paras 7, 8 and 17.
[24]
Mining
and Environmental Justice Community Network of South Africa and
Others v Minister of Environmental Affairs and Others
[2019] 1 All SA 491 (GP).
[25]
Mining
and Environmental Justice Community Network of SA
fn
22 para 4.
[26]
Maccsand
fn
8 para 45.
[27]
Maccsand
fn 8 para 44. Section 23(6) provides:
‘
A
mining right is subject to this Act, any relevant law, the terms and
conditions stated in the right and the prescribed terms
and
conditions and is valid for the period specified in the right, which
period may not exceed 30 years.’
[28]
Section
23 of NEMA provides:
‘
(1)
The purpose of this chapter is to promote the application of
appropriate environmental management tools in order to ensure
the
integrated environmental management of activities,
(2)
The general objective of integrated environmental management is to–
(a)
promote the integration of the principles of environmental
management set out in section 2 into the making
of all decisions
which may have a significant effect on the environment;
(b)
identify, predict and evaluate the actual and potential impact on
the environment, socio-economic conditions and cultural heritage,

the risks and consequences and alternatives and options for
mitigation of activities, with a view to minimising negative
impacts,
maximising benefits, and promoting compliance with the
principles of environmental management set out in section 2;
(c)
ensure that the effects of activities on the environment receive

adequate consideration before actions are taken in connection with
them;
(d)
ensure adequate and appropriate opportunity for public participation

in decisions that may affect the environment;
(e)
ensure the consideration of environmental attributes in management

and decision-making which may have a significant effect on the
environment; and
(f)
identify and employ the modes of environmental management best

suited to ensuring that particular activities pursued in accordance
with the principles of environmental management set out in
section
2.’
[29]
Section
24(7)
(g)
of NEMA.
[30]
National
Environmental Management Amendment Act 62 of 2008
.
[31]
Section
24L
of NEMA provides:
‘
Alignment
of environmental authorisations-
(1)
If
the carrying out of a listed activity or specified activity
contemplated in
section 24
it is also regulated in terms of another
law or a specific environmental management Act, the authority
empowered under that other
law or specific environmental management
Act to authorise that activity in the competent authority empowered
under Chapter 5
to issue an environmental authorisation in respect
of that activity may exercise their respective powers jointly by
issuing–
(a)
separate
authorisations; or
(b)
an
integrated environmental authorisation.
[32]
City
of Cape Town v Maccsand (Pty) Ltd and Others
2010 (6) SA 63
(WCC) paras 10 and 11.
[33]
Maccsand
fn 8.
[34]
Maccsand
fn 8 para 44, affirmed recently in
Maledu
and Others v Itereleng Bakgatla Mineral Resources (Pty) Ltd and
Another
[2018] ZACC 41
;
2019 (2) SA 1
(CC) para 106: ‘This conclusion
also finds support in this Court's decision in
Maccsand.
In Maccsand,
this
Court held that the exercise of a mining right was subject to any
other laws bearing on such a right. The MPRDA was not read
to
override the applicability or requirements of other statutes, such
as the Land Use Planning Ordinance, that may impact upon
mining
activity’.
[35]
Maccsand
fn 8 paras 47-48;
Telkom
SA SOC Limited v City of Cape Town and Another
[2020] ZACC 15
;
2020 (10) BCLR 1283
(CC) para 35.
[36]
Fuel
Retailers
fn 10 para 86.
[37]
Unitrans
Passenger (Pty) Ltd t/a Greyhound Coach Lines v Chairman, National
Transport Commission and Others; Transnet (Autonet
Division) v
Chairman National Transport Commission and Others
1999 (4) SA 1
(SCA) para 12.
[38]
An
‘environmental authorisation’ includes the authorisation
by a competent authority of a listed activity or specified
activity
in terms of NEMA. An ‘environmental management programme’
means a programme required in terms of s 24 of
NEMA.
[39]
Marshall
and Others v Commission for the South African Revenue Service
[2018] ZACC 11
;
2018 (7) BCLR 830
(CC) para 10.
[40]
Natal
Joint Municipal Pension Fund v Endumeni Municipality
[2012]
ZASCA 13
;
2012 (4) SA 593
(SCA) para 18, approved in
Airports
Company South Africa v Big Five Duty-Free (Pty) Ltd
[2018] ZACC 33
; 2019 (5) SA1 (CC) para 9.
[41]
In
Schedule 3 to the Waste Act, ‘“
hazardous
waste”
means any waste that contains organic or inorganic elements or
compounds that may, owing to the inherent physical, chemical or

toxicological characteristics of that waste, have a detrimental
impact on health and the environment and includes hazardous
substances, materials or objects within business waste, residue
deposits and residue stockpiles as outlined. . . ’.
[42]
In
Schedule 3 to the Waste Act, ‘“
residue
stockpile”
means any debris, discard, tailings, slimes, screening, slurry,
waste rock, foundry sand, mineral processing plant waste, ash
or any
other product derived from or incidental to a mining operation and
which is stockpiled, stored or accumulated within the
mining area
for potential re-use, or which is disposed of, by the holder of a
mining right, mining permit or, production right
or an old order
right, including historic mines and dumps created before the
implementation of this Act’.
[43]
Section
19(3)
(c)
of the Waste Act.
[44]
Oudekraal
Estates (Pty) Ltd v City of Cape Town and Others
2004 (6) SA 222
(SCA) para 26;
Merafong
Local
Municipality v AngloGold Ashanti Limited
[2016] ZACC 35
; 2017(2) SA 211 (CC) para 36.
[45]
Section
35 of the KZN Heritage Act provides:
‘
General
Protection
:
Traditional burial places –
35.(1)
No grave–
(a)
not
otherwise protected by this Act; and
(b)
not
located in a formal cemetery managed or administered by a local
authority,
may
be damaged, altered, exhumed, removed from its original position, or
otherwise disturbed without the    prior
written
approval of the Council having been obtained on written application
to the Council.
(2)
The
Council may only issue written approval once the Council is
satisfied that–
(a)
the
applicant has made a concerted effort to consult with communities
and individuals who by tradition may have an interest in
the grave;
and
(b)
the
applicant and the relevant communities or individuals have reached
agreement regarding the grave.’
[46]
Economic
Freedom Fighters and Others v Speaker of the National Assembly and
Another
[2017]
ZACC 47
;
2018 (2) SA 571
(CC) para 211.
[47]
Section
172(1) of the Constitution provides:
‘
172
Powers
of courts in constitutional matters
(1)
When
deciding a constitutional matter within its power, a court-
(a)
must
declare that any law or conduct that is inconsistent with the
Constitution is invalid to the extent of
its inconsistency; and
(b)
may
make any order that is just and equitable, including-
(i)
an
order limiting the retrospective effect of the declaration of
invalidity; and
(ii)
an
order suspending the declaration of invalidity for any period and on
any conditions, to allow the  competent
authority to correct
the defect.’
[48]
Economic
Freedom Fighters
fn
46 paras 210- 211.
[49]
Electoral
Commission v Mhlope and Others
[2016] ZACC 15
;
2016 (5) SA 1
(CC) para 132.
[50]
Fose
v Minister of Safety and Security
[1997] ZACC 6
;
1997 (3) SA 786
(CC) para 34.
[51]
Engen
Petroleum Ltd v Paargen Erf 116 (Pty) Ltd t/a Impala Motors and
Others
[2018] ZANWHC 27
para 9.
[52]
Public
Protector v South African Reserve Bank
[2019] ZACC 29
;
2019 (9) BCLR 1113
(CC) para 107.
[53]
Biowatch
Trust v Registrar Genetic Resources and Others
[2009] ZACC 14
;
2009 (6) SA 232
(CC) para 21.
[54]
National
Director of Public Prosecutions v Zuma
[2009] ZASCA 1
;
2009 (2) SA 277
(SCA);
2009 (1) SACR 361
(SCA);
2009
(4) BCLR 393
(SCA);
[2009] 2 All SA 243
(SCA) para 26.
[55]
Transnet
Ltd v Rubenstein
2006 (1) SA 591
(SCA) para 28.
[56]
Minister
of Land Affairs and Agriculture and Others v D & F Wevell Trust
and Others
[2007] ZASCA 153
;
2008 (2) SA 184
(SCA) para 43.
[57]
Global
Environmental Trust and Others v Tendele Coal Mining (Pty) Ltd and
Others
[2019]
ZAKZPHC 62 para 7.
[58]
Global
Environmental Trust
fn
57 para 8.
[59]
Minister
of Land Affairs
fn
56 para 43.
[60]
Wightman
t/a J W Construction v Headfour (Pty) Ltd and Another
[2008] ZASCA 6; [2008] 2 All SA 512 (SCA); 2008 (3) SA 371 (SCA).
[61]
Wightman
fn
60 para 13.
[62]
Ibid.
[63]
The
KZN Planning Act commenced on 1 May 2010 and SPLUMA commenced on 1
July 2015.
[64]
‘
List
of Waste Management Activities that have, or are likely to have, a
detrimental effect on the environment GN R921,
GG
37083, 29 November 2013.’
[65]
National
Council of Societies for the Prevention of Cruelty to Animals v
Openshaw
[2008] ZASCA 78
;
[2008] 4 All SA 225
(SCA);
2008 (5) SA 339
(SCA) para 20.