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[2018] ZAKZPHC 62
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Global Environmental Trust and Others v Tendele Coal Mining (Pty) Ltd and Others (11488/17P) [2018] ZAKZPHC 62; [2019] 1 All SA 176 (KZP) (20 November 2018)
IN THE HIGH COURT OF
SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
REPORTABLE
CASE
NO:11488/17P
In
the matter between:
GLOBAL
ENVIRONMENTAL TRUST
First
Applicant
MFOLOZI
COMMUNITY ENVIRONMENTAL
JUSTICE
ORGANISATION
Second
Applicant
SABELO
DUMISANI DLADLA
Third
Applicant
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
ORDER
The
application is dismissed with costs, such costs are to be paid by the
applicants jointly and severally and are to include the
costs of two
(2) Counsel.
JUDGMENT
Seegobin
J
Introduction
[1]
This is an application for an interdict. The matter was fully argued
before me on 24 August 2018. In the course of preparing
this
judgment, judgment in the matter of
Maledu
and others v Itereleng Bakgatla Mineral Resources (Pty) Ltd and
another
[1]
was handed down by the Constitutional court on 25 October 2018. That
case dealt primarily with two competing rights in the context
of
evictions: the
first
was the right of the
applicants to occupy and enjoy the farm which they and their
predecessors-in-title had occupied for nearly
a century; and the
second
was the right of the
respondents (the respective mining companies) to mine on the farm
occupied by the applicants. The case thus
concerned a dispute between
occupiers of land on the one hand and entities that were granted
mining rights to mine platinum group
metals under the Mineral and
Petroleum Resources Development Act 28 of 2002 (MPRDA) on the
self-same land on the other.
[2]
In light of the findings made in
Maledu
counsel in the present
matter were duly afforded an opportunity to make further written
submissions, if they so wished, on whether
such findings have a
material bearing on the issues that call for determination in the
present matter. Taking up this offer counsel
for the applicants Mr
Dickson
SC (assisted by Ms
Mazibuko
) delivered further
written submissions on 30 October 2018 and by agreement counsel for
the respondents, Mr
Lazarus
SC (assisted by Mr
Ferreira
)
did likewise on 2 November 2018. I am indebted to counsel in this
regard. I will deal with these further submissions and the findings
in
Maledu
later in this judgment.
Present
matter
[3]
This case concerns the Somkhele Mine (Somkhele) which carries on
mining operations adjacent to the Hluhluwe-Imfolozi Park in
northern
KwaZulu-Natal. Somkhele is one of the largest resources of
open-pit mineable anthracite in the country and is the
principal
supplier of anthracite to the ferrochrome industry in the Republic.
The ferrochrome industry on its own provides employment
for about
20 000 people in this country.
The
parties
[4]
This application is brought by 3 applicants: the first is Global
Environmental Trust, a registered trust which has the general
object
of pursuing and supporting environmental causes and has the power to
bring legal proceedings to advance its objects; the
second is the
Mfolozi Community Environmental Justice Organisation whose main
object is to protect the rights of the members of
the association who
are members of the communities affected by open-cast mining in the
area where they reside. The second applicant
boasts a membership of
530 residents. The third is Sabelo Dumisani Dladla, an adult male
student who resides in an area known as
Nkolokotho which is near the
site of the mining being conducted by the first respondent at
Somkhele. Mr Dladla is the main deponent
to the applicants’
founding papers.
[5]
The application is brought in terms of s 24 of the Constitution of
1996
[2]
and also in terms of one
or more of the provisions of s 38 of the Constitution,
[3]
either in the public interest or as an affected party.
[6]
Nine respondents have been cited: the first and perhaps the most
important being Tendele Coal Mining (Pty) Ltd which will be
referred
to simply as ‘Tendele’. It is Tendele that conducts
mining operations in the area of Somkhele. Tendele opposes
the
granting of any relief against it as set out further on in the
judgment. (see para 12
infra
)
[7]
The eight other respondents (in the order in which they have been
cited) are the Minister of Minerals and Energy (second respondent),
the MEC: Department of Economic Development, Tourism and
Environmental Affairs (third respondent), the Minister of
Environmental
Affairs (fourth respondent), the Mtubatuba Municipality
(fifth respondent), the Hlabisa Municipality (sixth respondent), the
Ingonyama
Trust (seventh respondent), Ezemvelo KZN Wildlife (eighth
respondent) and lastly Amafa aKwaZulu-Natali Heritage Council (ninth
respondent). Apart from the second respondent indicating that he will
abide the decision of this court, none of the other respondents
have
shown any interest in the matter.
Amici
curiae
[8]
In the course of these proceedings four other parties applied jointly
for consent to be admitted as
amici curiae
in terms of rule
16A(2) of the Uniform Rules. Neither the applicants nor Tendele
raised any real objections to the application
and the
amici
were duly admitted. They comprise the following: The Mpukunyoni
Traditional Council and Mpukunyoni Traditional Authority (MTC),
the
30 Izinduna of the 30 Isigdodi in the Mpukunyoni Area (Mpukunyoni
Izinduna), Mpukunyoni Community Mining Forum (MCMF), the
Association
of Mineworkers and Construction Union (AMCU) and the National Union
of Mine Workers. At the opposed hearing on 24 August
2018 the
amici
were represented by
Mr D Sibiyi
.
[9]
The positions occupied by the respective
amici
in relation to
the applicants on the one side and Tendele on the other are as
follows: the MTC has a substantial interest in the
mining activities
of Tendele since Tendele is one of the biggest employers of community
members of the Mpukunyoni area.
The Mpukunyoni Izinduna are by
extension the arm of the MTC and stand in an immediate contact
position with the Mpukunyoni community
members who are employees
and/or potential employees of Tendele. The MCMF operates as a liaison
between the Tendele management
and the Mpukunyoni community at large
regarding the operations of Tendele. AMCU and the National Union of
Mine Workers represent
the employees of Tendele, whose interests
would be adversely affected if the mine was closed.
[10]
In the main the case made out by the
amici
was that the
closure of the mine would have a deleterious effect not only on the
people who work there but also on the community
at large. They
contended that even if the mine were to shut down for a short period
the negative consequences of the damage and
loss of infrastructure
may be difficult to reverse. The Mpukunyoni community in particular
would stand to lose the current good
state and condition of the
infrastructure provided by Tendele which would be dilapidated and
costly to rehabilitate should the
mine close.
[11]
The position adopted by the
amici
is in many ways very similar
to that of Tendele as far as the interests of its employees and the
broader interests of the community
are concerned. They highlighted
the beneficial effects that mining has had in the area as it is one
of the main sources of income
for many households within the
Mpukunyoni community. The majority of households in the area are
entirely dependent on the continued
existence of the mining
operations for their livelihood.
Relief
sought
[12]
The applicants seek an interdict to shut the mine down completely.
They argue that the mine is operating illegally and in contravention
of various pieces of legislation. The full extent of the relief
claimed in the amended notice of motion is the following:
“
1.
THAT First Respondent be and is hereby interdicted and restrained
from carrying on any mining operations at the following sites:
-
1.1
Area 1 on Reserve No. 3 (Somkhele) No 15822 measuring 660.5321
hectares as described in the Mining Right dated 22
nd
June
2007;
and/or
1.2
Areas 2 and 3 on Reserve No. 3 (Somkhele) No. 15822 measuring
779.8719 hectares as described in the Mining Right date 30
th
March 2011;
and/or
1.3
Areas of KwaQubuka and Luhlanga areas on Reserve No. 3 No. 15822
measuring 706.0166 hectares as described in the Amendment of
a Mining
Right dated 8
th
March 2013;
and/or
1.4
One part of the Remainder of Reserve No. 3 No. 15822 in extent
21233.0525 hectares described in the Mining Right dated 26
th
October 2016;
Until
further order of this Honourable Court
.
2.
THAT First Respondent pay the costs of this application together
jointly and severally, with any other Respondent who opposes
this
application.
3.
THAT Applicants be granted further and/or alternative relief.”
(my
emphasis)
Nature
of the relief claimed
[13]
There was some disagreement on the papers between the applicants and
Tendele as to whether the interdict they seek is final
or interim. It
seems that the relief originally sought in the notice of motion was
for a final interdict that would have restrained
Tendele from
conducting any mining operations at Somkhele. In the replying
affidavit the applicants denied that the relief they
seek is final.
They foreshadowed an amendment to the notice of motion that will
clarify the position. They averred that they “
do not seek a
final interdict to prevent Tendele from mining at Somkhele but an
interdict to prevent the mining from taking place
illegally or
contrary to the requirements of the law
.”
[14]
In paragraph 2 of their heads of argument and in oral submissions
counsel for the applicants again characterised the relief
as being
interim in nature. They submitted that “the interdict being
sought by applicants is semi-temporary in that it is
sought until
further order of this Honourable Court” (this is in line with
the wording now appearing in the amended notice
of motion). In
paragraph 5.2 of their heads of argument they say that they seek
“
an
interdict to prevent Tendele from conducting itself illegally pending
compliance and a return to the High Court. In other words
an
interdict until Tendele satisfies the court that it is compliant.
This is temporary in nature and effect. These are referred
to as
‘structural interdicts’
.”
[15]
At the outset I make the following preliminary observations
concerning the manner in which the relief has been framed. Having
regard to counsels’ submissions as set out above, it seems to
me that the applicants are not entirely sure as to precisely
what
relief they seek. I say this for the following reasons:
15.1
By definition an interim interdict is
“
a
court order preserving or restoring the
status
quo
pending
the final determination of the rights of the parties. It does not
involve a final determination of these rights and does
not affect
their final determination.”
[4]
15.2
The legal requirements for an interim interdict are
well-established.
[5]
The
following statement of the requirements by Corbett J (as he then
was)
[6]
is representative of
what has become the almost standard formulation of the
requirements:
[7]
“
Briefly
[stated] these requisites are that the applicant for such temporary
relief must show –
(a)
that the right which is the subject-matter of the main action and
which he seeks to protect by means of interim relief is clear
or, if
not clear, is
prima facie
established, though open to some
doubt;
(b)
that, if the right is only
prima facie
established, there is a
well-grounded apprehension of irreparable harm to the applicant if
the interim relief is not granted and
he ultimately succeeds in
establishing his right;
(c)
that the balance of convenience favours the granting of interim
relief; and
(d)
that the applicant has no other satisfactory remedy.”
15.3
In
Maledu, supra
, the Constitutional Court, with reference to
the applicable legal framework relevant to the issues in that matter
found it
necessary to investigate whether the MPRDA provided
for an alternative avenue of relief that should have been first
exhausted before
the respondents were entitled to approach the court
for relief in the form of an eviction and an interdict. In this
regard the
Constitutional Court said the following:
“
[8]
…. In the main, this will entail investigating whether the
MPRDA creates an alternative avenue for relief that must be
exhausted
before the respondents could approach a court for eviction and an
interdict as they did.
This
is in line with the well-entrenched rule of our law that an
application for an interdict cannot succeed if the requirements
set
out in
Setlogelo
are not met. The requirements include, among others, “the
absence of any other satisfactory remedy
”
(footnotes omitted, my emphasis).
15.4
A structural interdict on the other hand is one in which the violator
is instructed to take steps to comply with its constitutional
obligations and then report back to the court on the extent to which
it has complied with the court’s order. It thus involves
the
continued participation of the court in the implementation of its
orders. The circumstances in which a court will consider
making such
an order and the pre-requisites for such an order are aptly
summarised by Lowe J in
Kenton-On-Sea
Ratepayers v Ndlambe Municipality
[8]
as follows:
“
[97]
The Constitutional Court has shown itself willing to grant structural
interdicts in appropriate circumstances. In
Hoërskool
Ermelo and Another v Head, Department of Education, Mpumalanga, and
Others
2009
(3) SA 422
(SCA), the court stated that a remedy in the form of
a structural interdict or supervisory order may be very useful.
This
is because, the court stated further, it advances constitutional
justice by ensuring that the parties themselves become part of
the
solution.
[98]
A structural interdict consists of five elements. First, the court
declares the respects in which the violator's conduct falls
short of
its constitutional obligations; second, the court orders the
violator to comply with its constitutional obligations;
third, the
court orders the violator to produce a report within a specified
period of time setting out the steps it has taken;
fourth, the
applicant is afforded an opportunity to respond to the report; and
finally, the matter is enrolled for a hearing and,
if
satisfactory, the report is made an order of court. (See
Dawood
and Another v Minister of Home Affairs and Others; Shalabi and
Another v Minister of Home Affairs and Others; Thomas and
Another v
Minister of Home Affairs and Others
2000 (3) SA 936
(CC)
(2000 (8) BCLR 837
;
[2000] ZACC 8)
paras 67 – 70;
Minister
of Health v Treatment Action Campaign (No 2)
2002 (5) SA 721
(CC)
(2002 (10) BCLR 1033
;
[2002] ZACC 15)
paras 101 – 114
and 124 – 133;
Pheko and Others v Ekurhuleni Metropolitan
Municipality
2012 (2) SA 598
(CC)
(2012 (4) BCLR 388
;
[2011]
ZACC 34)
para 50;
Head of Department, Mpumalanga Department of
Education and Another v Hoërskool Ermelo and Another
2010
(2) SA 415
(CC)
(2010 (3) BCLR 177
;
[2009] ZACC 32)
para 97.)
[99]
And in 10(1)
Lawsa
the following appears: A court —
‘
(m)ay
grant appropriate relief, including a declaration of rights, when a
right in the Bill of Rights has been breached. This relief
is
typically invoked when government policy is inconsistent with the
Constitution. Structural interdicts are particularly suited
to
remedying systemic failures or inadequate compliance with
constitutional duties. The purpose of a structural interdict
is to
compel an organ of state to perform its constitutional duties and to
report from time to time on its progress in so doing.
This order
involves requiring an organ of state to revise an existing policy and
to submit the revised policy to the court to enable
the court to
satisfy itself that the policy is consistent with the Constitution.’
[100]
In
Fose v Minister of Safety and Security
1997 (3) SA 786
(CC)
(1997 (7) BCLR 851
;
[1997] ZACC 6)
para 100, Kriegler J stated:
‘
There
is no reason, at the outset, to imagine that any remedy is excluded.
Provided the remedy serves to vindicate the Constitution
and deter
its future infringement, it may be appropriate relief . . . .’
[101]
The Constitutional Court (para 19, Ackermann J) held that:
‘
Appropriate
relief will in essence be relief that is required to protect and
enforce the Constitution. Depending on the circumstances
of each
particular case the relief may be a declaration of rights, an
interdict, a
mandamus
or such other relief as may be required to ensure that the rights
enshrined in the Constitution are protected and enforced.
If it is
necessary to do so, the courts may even have to fashion new remedies
to secure the protection and enforcement of these
all-important
rights.’”
15.5
Structural interdicts are ordinarily only appropriate in cases where
it is necessary to secure compliance with a court order.
The
Constitutional Court
[9]
has held
that (footnotes omitted):
“
The
order made by the High Court included a structural interdict
requiring the appellants to revise their policy and to submit the
revised policy to the Court to enable it to satisfy itself that the
policy was consistent with the Constitution. In
Pretoria
City Council
this Court recognised that Courts have such powers. In appropriate
cases they should exercise such a power if it is necessary to
secure
compliance with a court order. That may be because of a failure to
heed declaratory orders or other relief granted by a
Court in a
particular case. We do not consider, however, that orders should be
made in those terms unless this is necessary. The
government has
always respected and executed orders of this Court. There is no
reason to believe that it will not do so in the
present case.”
15.6
In the
Treatment Action Campaign
matter,
supra
, the
Constitutional Court, after conducting an examination of the
jurisprudence in foreign jurisdictions on the question of remedies
found “that courts in other countries also accept that it may
be appropriate, depending on the circumstances of the particular
case, to issue injunctive relief against the State …”
(para 107). In paragraph 112 of the judgment the court went
on to say
the following:
“
[112]
What this brief survey makes clear is that in none of the
jurisdictions surveyed is there any suggestion that the granting
of
injunctive relief breaches the separation of powers. The various
courts adopt different attitudes to when such remedies should
be
granted, but all accept that within the separation of powers they
have the power to make use of such remedies – particularly
when
the State’s obligations are not performed diligently and
without delay.”
15.7
Following from the above the SCA
[10]
has characterised the relief as “
an
order where the court exercises some form of supervisory jurisdiction
over the relevant organ of state.
”
15.8
From the authorities it thus appears that structural interdicts are
virtually always sought and/or granted against organs of
state.
[16]
In light of the principles set out above it is left to be seen
whether the applicants have made out a proper case for the relief
sought or for some other relief that would be appropriate in the
circumstances.
Applicants’
complaints
[17]
The applicants complain that Tendele’s current mining
operations are unlawful because Tendele (a) has no environmental
authorisation issued in terms of section 24 of the National
Environmental Management Act 107 of 1998 (NEMA); (b) has no land use
authority, approval or permission from any municipality having
jurisdiction; (c) has no waste management licence issued by the
Minister of Environmental Affairs in terms of section 43 of the
National Environmental Management: Waste Act 59 of 2008 (Waste
Act)
and (d) has no written approval in terms of section 35 of the
KwaZulu-Natal Heritage Act 4 of 2008 (the KZN Heritage Act)
to
damage, alter, exhume or remove any traditional graves from their
original position.
Issues
that require determination
[18]
The following broad issues arise:
18.1
Whether Tendele was required to obtain environmental authorisation as
contemplated in section 24 of NEMA prior to commencing
with
operations and if so, whether statute permits the continuation of
mining operations pending compliance with legislation.
18.2
Whether an Environmental Management Programme (EMP) obtained under
the MPRDA prior to the legislative amendments in December
2014 which
gave rise to the One Environmental System entitles Tendele to
continue its pre-existing mining operations.
18.3
Whether the provisions of the KwaZulu-Natal Planning and Development
Act 6 of 2008 (KwaZulu-Natal PDA)), the Special Planning
and Land Use
Management Act 16 of 2013 (
SPLUMA
) and the provisions of the
Mtubatuba SPLUMA Bylaws of January 2017 are applicable to Tendele,
and if so:
18.3.1
Whether Tendele submitted a land use application to the fifth and/or
sixth respondent and whether it received the requisite
authority to
use and develop the property as contemplated in the KwaZulu-Natal
PDA;
18.3.2
Whether Tendele has complied with the provisions of SPLUMA,
particularly s 26 read with Schedule 2;
18.3.3
Whether Tendele has complied with the provisions of the SP LUMA
Bylaws of the fifth respondent;
18.3.4
Whether the provisions of the KZN Heritage Act are applicable to
Tendele and if so, whether Tendele has complied therewith,
especially
s 35 thereof.
18.3.5
Whether Tendele requires a waste management licence for any of its
mining activities as required by the National Environment
Management:
Waste Act 59 of 2008 and more specifically sections 19 and 20 read
with Schedule 3 thereof.
18.3.6
Whether the interdict sought is interim or final.
18.3.7
Whether, if the court finds that the applicants have established the
requirements of either an interim or final interdict,
it would be
just and equitable for the court to suspend the operation of any
interdict in order to allow Tendele the opportunity
to apply for the
necessary statutory approvals to continue its mining operations.
Legislative
content
[19]
The legislative instruments relevant to this application are:
-
the
National Environmental Management Act 107 of 1998
,
-
the
Mineral and Petroleum Resources Development Act 28 of 2002
,
-
National Environmental Management Laws Amendment Act 25 of 2014,
-
National Environment Management Act Regulations, GN R10328,
GG
38282, 4 December 2014,
-
KwaZulu-Natal Planning and Development Act 6 of 2008,
-
Spatial Planning and Land Use Management Act 16 of 2013
,
-
Mtubatuba SPLUMA Bylaws of January 2017,
Provincial Gazette
1797, 9 March 2017,
-
National Environmental Management: Waste Act 59 of 2008
, and
-
The KwaZulu-Natal Heritage Act 4 of 2008.
Summary
of applicants’ case
[20]
The applicants contend that:
20.1
the environmental authorisations were a requirement necessitating
compliance and that the subsequent amendments to NEMA and
the MPRDA
do not alter the pre-existing obligations for Tendele to obtain an
environmental authorisation.
20.2
the provisions of the KwaZulu-Natal PDA and SPLUMA and the fifth
respondent’s municipal bylaws are applicable to Tendele
and
more importantly prior to embarking on the mining activity Tendele
was required to obtain the requisite land use authorisation
from the
fifth
alternatively
sixth respondent and has not done so.
20.3
the removal and/or altering of traditional graves could only have
been embarked upon in terms of section 35 of the KwaZulu-Natal
Heritage Act, however Tendele has not done so.
20.4
Tendele has failed to comply with the provisions of the Waste Act
which are applicable to the activities conducted by Tendele
at the
Somkhele mine.
Summary
of Tendele’s case
[21]
Tendele’s case is that:
21.1
it does not require environmental authorisations in terms of s 24 of
NEMA because its operations are undertaken pursuant to
valid mining
rights and EMP’s granted and approved by the Department of
Mineral Resources (DMR) prior to the legislative
amendments in
December 2014 which gave rise to the One Environmental System.
21.2
its mining operations pre-date the introduction of mining as a land
use requiring municipal approval and the introduction of
the relevant
legislation provides for the continuation of lawful, historical
mining operations such as those undertaken by it and
that, in any
event, it has obtained municipal approval for its mining operations.
21.3
while it accepts that it has previously removed or altered
traditional graves without being in possession of the necessary
authorisation, there is no risk that it will in future conduct any
such removal or alteration without approval and accordingly
there is
no basis for any interdict.
21.4
it does not require a waste management licence in terms of the Waste
Act because the transitional provisions of the Waste Act
provide for
the continuation of waste management activities provided they were
being lawfully undertaken prior to the commencement
of the provisions
in the Waste Act applying to residue stockpiles and residue deposits.
21.5
if the court finds that the applicants have established the
requirements for either an interim or a final interdict, the court
should suspend the operation of any interdict it may be inclined to
grant in order to give Tendele the opportunity to apply for
the
necessary statutory approvals without ceasing its mining operations,
as it is the primary employer in the Somkhele area and
the only
livelihood of thousands of people.
Mining
rights and approved EMP’s held by Tendele
[22]
No dispute arises on the papers concerning the mining rights being
held by Tendele at Somkhele. In its answering affidavit
deposed to by
its CEO Mr Du Preez, Tendele points out that although the Somkhele
mine comprises a single mining area, the mining
operations are
divided between five areas and separate mining rights apply to the
different areas. All five areas fall within Reserve
3 in the
magisterial district of Mtubatuba in KwaZulu-Natal. The mineral in
respect of which all mining rights are held is coal.
[23]
The mining right applicable to each area is as follows:
23.1
Area 1 mining right
On
21 May 2007, Tendele was granted a mining right in terms of section
23 of the MPRDA, bearing the Department of Mineral Resources’
(“
DMR
”
)
reference number KZN30/5/1/2/2/135MR (“
Area
1 mining right
”
)
[11]
23.2
Area 2 and 3 converted mining right
On
1 February 2011, Tendele was granted a mining right in terms of Item
7 of Schedule 2 to the MPRDA bearing DMR reference number:
KZN30/5/1/2/2/216MR (“
Areas
2 and 3 converted mining right
”
)
[12]
23.3
Prior to the grant of the Areas 2 and 3 converted mining right,
Tendele held a mining licence issued on 9 April 2003 in terms
of
section 9 of the (now repealed) Minerals Act 50 of 1991 (“Minerals
Act”) in respect of the two areas (bearing reference
number KZN
ML 354/2003). In accordance with the provisions of Item 7 of Schedule
2 of the MPRDA, Tendele applied for the conversion
of its mining
licence to a mining right following the commencement of the MPRDA on
1 May 2004.
23.4
On 8 March 2013 Areas 2 and 3’s converted mining right was
amended through an application in terms of section 102 of
the MPRDA
to include the KwaQubuka and Luhlanga areas (also known as Areas 8
and 9) into the ambit of Areas 2 and 3 converted mining
right.
[13]
23.5
On 31 May 2016, Tendele was granted a mining right in terms of
section 23 of the MPRDA bearing DMR reference number:
KZN3/5/1/2/2/10041MR
(“
Areas
4 and 5 mining right
”
).
[14]
23.6
Prior to the grant of Areas 4 and 5 mining right, Tendele was the
holder of a converted prospecting right bearing DMR reference
number:
KZN3/5/1/2/2/86PR, having been granted such right on 4 April 2006.
Prior thereto and on 18 September 2003, Tendele was
granted a
prospecting permit in accordance with the provisions of the Minerals
Act in respect of Area 4 which, at the time, included
the KwaQubuka
and Luhlanga areas. Tendele commenced drilling activities in and on
the KwaQubuka and Luhlanga areas in July 2777
in accordance with an
old order prospecting right (as defined in Item 1 of Schedule 2 of
the MPRDA, prior to the registration of
the converted prospecting
right in the Mining and Petroleum Titles Registration Office on 29
August 2007. In addition to the prospecting
permit, Tendele took
cession from AfriOre of a notarially executed mineral lease and
prospecting contract with the Ingonyama Trust
(the seventh
respondent) on 14 May 2001.
23.7
An environmental management programme (“EMP”), as
contemplated in the now repealed section 39 of the MPRDA, was
approved by the DMR in respect of each of Tendele’s mining
rights as follows:
23.7.1
The EMP applicable to the Area 1 mining right was approved by the
Regional Manager of the DMR: KwaZulu-Natal Province (“Regional
Manager”) on 22 June 2007.
23.7.2
The EMP attaching to the Areas 2 and 3 converted mining right was
approved by the Regional Manager on 30 March 2011. Amendments
to this
EMP, to cater for the inclusion of the KwaQubuka and Luhlanga areas
(Areas 8 and 9) were approved on 29 May 2012 in terms
of section 102
of the MPRDA as mentioned above.
23.7.3
The EMP attaching to the Areas 4 and 5 mining right was approved by
the Regional Manager on 31 May 2016.
Relevant
background
Tendele’s
current mining operations
[24]
Mr du Preez points out that at present Tendele is only actively
mining in Area 1 and the extended area of Area 2, namely the
KwaQubuka and Luhlanga areas. (As mentioned previously these areas
are also known as Areas 8 and 9). The mine’s coal wash
plants,
which are also presently in operation, are located in Area 2.
[25]
Tendele commenced with its mining operations in Area 1 in July 2007
in accordance with the Area 1 mining right and the approved
EMP in
relation to that Area.
[26]
Mining operations (in the form of drilling activities) also commenced
in 2007 in Areas 8 and 9 in accordance with an old order
prospecting
right (as mentioned above). Mining operations commenced in Area 2 in
2006 in accordance with an old order mining right
prior to the
registration of the Areas 2 and 3 converted mining right. Mining
operations continued in these areas after the commencement
of the
MPRDA in accordance with the Areas 2 and 3 converted mining right and
the associated EMP.
[27]
Mining operations are not being undertaken in and on Area 3. Mining
operations ceased in Area 2 in January 2012 due to the
depletion of
the anthracite reserves. To date, mining operations have not
commenced on Areas 4 and 5, notwithstanding the grant
of the Areas 4
and 5 mining right and the approval of the associated EMP.
History
of mining in the Somkhele area
[28]
The following history of mining in the Somkhele area as contained in
Tendele’s answering affidavit is not disputed:
28.1
Since the discovery of significant quantities of anthracite in the
Somkhele area in the 1880’s, the Somkhele mining area
became
the subject of numerous prospecting and mining projects. In 1895 and
in anticipation of coal mining in the Somkhele area,
the construction
of a railway line commenced from Durban to the Somkhele area. The
first commercial extraction of anthracite from
the Somkhele area
occurred between 1903 and 1909 in what is now Area 4 of Reserve 3
when the now defunct Zululand Collieries produced
a total of 49 209
tons of anthracite.
28.2
Between 1936 and 1939, Umfolozi Co-Op Sugar Planters Ltd tested the
suitability of the anthracite from Somkhele for use at
their sugar
mills near Mtubatuba. Some 300 tons of anthracite were subsequently
mined by Sugar Planters for use in the mechanically
stoked boilers.
In 1965, JCI Mining (Pty) Ltd (“
JCI
”), through
Somkhele Prospecting Co. (Pty) Ltd, acquired a concession over an
area extending from the Nongoma /Mtubatuba road
in the south to the
south-eastern corner of the Hluhluwe Game Reserve, constituting an
area of 168 square kilometres. Between 1966
and 1976, JCI drilled
numerous boreholes in search of anthracite in what is now Somkhele
Areas 1, 3, 4, 5 and 9. The results of
the exploratory drilling in
Area 1 alone showed a total extractable reserve of 7.9 million tons
of anthracite to a depth of 300
metres in an area of 330 hectares
with open pit potential.
28.3
Between 1976 and 1982, JCI drilled further boreholes and conducted
geophysical surveys in what is now Somkhele Area 2 and identified
further potential anthracite reserves. In 1979, JCI acquired
prospecting rights and authorisations in respect of what is now
Somkhele
Area 3 and drilled more boreholes in search of further
anthracite reserves. In 1986 and 1987, further drilling activities
were
undertaken by JCI in Somkhele Area 1. Between 1994 and 2004,
AfriOre Ltd (“
AfriOre
”) acquired vaious mining
interests in Somkhele. Between 2001 and 2003, AfriOre drilled
numerous boreholes in what is now
Somkhele Area 2 pursuant to a
mining licence issued in terms of the now repealed Minerals Act. In
2004 AfriOre sold its interests
in Somkhele to a consortium led by
the New Africa Mining Fund (“
NAMF
”).
28.4
In 2005, Petmin Limited, the holding company of Tendele, purchased
all of the anthracite interests held by the NAMF in Somkhele.
Tendele
commenced mining operations in Somkhele Area 2 in 2006 pursuant to
the grant of a mining licence and subsequently a mining
right and the
approval of an Environmental Management Programme (“
EMP
”)
as described in more detail below. Mining operations also commenced
in Area 1 in 2007 pursuant to the grant of a mining
right as further
discussed below. Similarly, Tendele commenced mining operations
(comprising drilling activities) in Areas 8 and
9 in July 2007, as
set out above.
Somkhele
mine and socio-economic development
[29]
The Somkhele mine is located approximately 18km to the west of
Mtubatuba and 52km north east of Richards Bay within Reserve
3
(Somkhele No. 15822 in the Magisterial District of Mtubatuba,
KwaZulu-Natal Province). Although mining operations commenced in
the
Somkhele area in the mid-1880’s Tendele commenced mining
operations at the Somkhele mine in 2006. The mineral mined at
Somkhele is anthracite – a hard, compact variety of coal which
has the highest carbon content, the fewest impurities and
the highest
energy density of all types of coal except for graphite.
[30]
Somkhele has one of the largest resources of open-pit mineable
anthracite reserves in South Africa. Tendele currently sells
the
higher quality anthracite mined at Somkhele (constituting 50% of
total production) to local ferrochrome producers and is, in
fact, the
principal supplier of anthracite to ferrochrome producers in South
Africa. The high quality anthracite is a critical
component of the
reductant mix used in smelters by ferrochrome producers. At present
Tendele sells 730 000 tons of anthracite
per annum to local
ferrochrome producers.
[31]
The production of ferrochrome requires anthracite that is low in
sulphur and phosphorus which is in increasingly short supply
in South
Africa. Tendele is said to be unique among South African anthracite
producers as other anthracite producers cannot produce
the qualities
and quantities consistently required by ferrochrome producers. If
Tendele does not supply anthracite to the local
ferrochrome market,
it is likely that local ferrochrome producers would be required to
import its reductants (being either anthracite
or low sulphur coke
breeze) in order to continue production which would significantly
increase the cost of the production of ferrochrome
– a crucial
component in the production of stainless steel. Increased production
costs may, for example, result in retrenchments
which will negatively
affect South Africa’s trade balance and have associated
regional and national economic impacts. South
Africa is the second
largest producer of ferrochrome in the world, with China being the
largest.
[32]
According to Mr Du Preez, Somkhele has had a significant and positive
impact on the communities surrounding the mine through,
inter
alia
, investment, training and job creation. Tendele currently
employs over 1 000 people at Somkhele, with 83% of employees
residing
in the impoverished Mpukunyoni Area surrounding Somkhele.
This means that 830 households in the Mpukunyoni Area (Somkhele’s
hosting community) benefit from employment at Somkhele. Not only does
Tendele employ over 1 000 people at Somkhele through
training
initiatives, Somkhele has procured services from local entrepreneurs
from the Mpukunyoni Area. These entrepreneurs employ
in excess of a
further 200 people from the local community. Such services include,
inter alia
, the transportation of anthracite to the Richards
Bay port, laundry services at Somkhele and local transport and taxi
services
for Somkhele employees.
[33]
The Mtubatuba Local Municipality Integrated Development Plan (“
IDP
”)
for 2017/2018 – 2022 provides, at 13.1 that
“…
mining
is one of the major employment sectors in Mtubatuba Municipality
through Somkhele Coal Mine … [I]t is a well-known
fact that
the majority of people working in this mine are locals (within
Mtubatuba Municipal area, Mpukunyoni Traditional Council
in
particular”.
It
is further recognised in the IDP,
inter alia
, that
“
[T]he
unemployment rate within Mtubatuba Municipality was at 59.7% in 2001,
however in 2011 there … [was] a significant improvement
as it
is estimated to be at 39%. This may be due to the coal mining
operation taking place in the Mpukunyoni Traditional Council
area,
Somkhele Mine”.
It
is further stated at 13.1.1 of the IDP that the Mtubatuba
Municipality’s economy is driven by the performance and
structures
of,
inter alia
, mining at Somkhele.
[34]
Tendele asserts that to date 800 households in the Mpukunyoni Area
have received training in farming activities through an
initiative
introduced by it. The majority of these households are female-headed
households. Tendele has undertaken to construct
a trade hub at which
these farmers can sell their produce. Through the Municipal Local
Economic Development division, Tendele is
in the process of procuring
tractors and other equipment to support local farming in the
Mpukunyoni area.
[35]
In addition (and amongst other training programmes), Tendele offers
adult basic education and training which has been completed
by 935
people between 2010 and 2017 at both the training centre constructed
by Tendele at Somkhele and at an education centre in
a nearby area
that was refurbished by Tendele and is rented from the Mtubatuba
Municipality. The education centre provides mathematics
and science
programmes for school children and matric study support. Tendele
provides student teachers in community schools to
assist with
education. Sixteen (16) apprentices have completed learnerships at
Somkhele, 7 of whom have been employed at Somkhele.
To date, 817
people have obtained National Certificates: N1 – N3 Engineering
Studies (mechanical) from the Umfolozi TVET
College in Richards Bay
at the Somkhele education centre. In addition, Tendele offers
bursaries for tertiary studies to students
in the various local
communities, eighty four (84) bursaries were awarded by Tendele
between 2008 and 2017.
[36]
Between December 2006 and December 2016, Tendele spent R719m paying
local community employee salaries; R54m on community projects
in
accordance with approved Social and Labour Plans attaching to each of
the Tendele Mining Rights; and R300m on procuring services
from
community based black economic empowerment companies.
[37]
In addition, Tendele has,
inter alia
, constructed new homes
with water as well as sewerage and electricity infrastructure for
community members who were required to
be relocated by Tendele;
provided local communities with potable water delivered by water
tankers since 2015 at a cost of R100 000.00
a month as the
Mtubatuba Municipality was unable to provide water to certain areas
surrounding Somkhele; constructed the Siphelele
Primary School and a
soccer field, at a cost of approximately R10m and assisted with the
provision of teachers as well as basic
maintenance and water (when
required); constructed the Somkhele Maternity Ward at the Somkhele
clinic at a cost of R3.5m after
consultation with the Department of
Health; constructed large community halls in Dubelenkunzi, Machibini,
KwaMyeki and Esiyembeni
(which are community areas surrounding
Somkhele); and constructed community roads and bridges.
[38]
In 2015 Tendele concluded a R350m transaction giving local
communities surrounding Somkhele as well as Tendele employees a
20%
stake in Somkhele. As a result, a BEE special purpose vehicle holds
20% of the shares in Tendele which in turn is held 80%
by a trust
established for the benefit of the youth in the Mpukunyoni community
and 20% is held by a trust for the benefit of all
employees of the
Somkhele mine. As a result, the Mpukunyoni community and Tendele
employees directly benefit from the continued
operation of Somkhele.
[39]
A further recent development highlighted by Mr Du Preez is the
establishment in early 2017 of a community structure, known
as the
Mpukunyoni Community Mining Forum (“
MCMF
”). This
was established after numerous consultations with various interest
groups including,
inter alia
, traditional structures in the
Mpukunyoni Area, local entrepreneurs and businesses, Tendele
employees, non-governmental organisations
and non-profit
organisations operating in the Mpukunyoni Area and representatives of
the Mtubatuba Municipality. Tendele claims
that the MCMF represents
the interest of the communities in the Mpukunyoni Area in respect of
the mining operations undertaken
at Somkhele and has the following
representatives (amongst others) – the Inkosi (representing the
8 Royal Houses (related
to the Zulu King) of the Mpukunyoni Area, the
Traditional Council and the Traditional authority); the Indunankulu,
Chief Induna
of the Mpukunyoni Area; the Mayor of the Mtubatuba
Municipality (or his/her nominee), in his/her capacity representing
the entire
Mtubatuba Municipality; the 8 Indunas of the areas in
which the mine operates; representatives of local entrepreneurs;
full-time
shop stewards; and faith-based organisations.
[40]
In each of the 8 areas surrounding Somkhele, Tendele points out that
a democratically elected mining area committee (“
MAC
”)
has been established to ensure that the wider community is
represented. The various MACs are consulted through the MCMF,
ensuring that the interests of each of these communities are
protected. Tendele has developed a roadmap with the input of MCMF
representatives which was subsequently signed by,
inter alia
,
community leaders on 29 March 2017. The road map outlines the purpose
of the MCMF and provides a platform through which,
inter alia
,
community leaders and individuals are consulted with regard to
activities undertaken at Somkhele; complaints can be raised regarding
the activities at Somkhele; social and labour plans are developed (to
the benefit of the community); and compliance with Tendele’s
black economic empowerment obligations are ensured to the
long-lasting benefit of the community.
Applicant’s
founding papers
[41]
As I pointed out above, the applicants’ founding papers were
deposed to by Mr Dladla who resides in an area known as
Nkolokotho
near the site of the coal mining conducted by Tendele at Somkhele.
Much of the founding affidavit is taken up by a reference
to the
various pieces of legislation in respect of which the applicants
allege that Tendele is acting unlawfully. I will deal with
this
legislation in due course as they pertain to the issues identified
for determination above. For now it is convenient to highlight
some
of the difficulties being encountered by Mr Dladla and other members
of the second applicant who are all resident in close
proximity to
the mining operations at Somkhele and are directly affected thereby.
[42]
Mr Dladla points out that he and his family were opposed to coal
mining in the area from inception. The quality of life has
changed
completely since Tendele commenced its mining operations. The entire
area was used for grazing purposes before Tendele
arrived. In 2009
the area was fenced off by Tendele without notice. In 2014 Mr
Dladla’s family lost 2 head of cattle due
to mining operations.
This was because the fence that was put up was not properly
maintained. No compensation was given by Tendele.
Goats belonging to
his family would enter the mining area and not return. At one point
the family owned 15 goats and now it has
none.
[43]
Rainwater which is stored in drums for drinking purposes becomes
contaminated with dust from the mining operations. Drinking
water now
has to be extracted from the Mfolozi River. However, when this river
ran dry in 2016, the residents were without water
for months. While
Tendele went ahead and sank 4 to 5 boreholes alongside the river,
these were for its mining operations only.
The Nkolokotho stream that
feeds the Mbukwinini Dam is often polluted from the wash down areas
and pollutes the dam in the process.
[44]
Mr Dladla avers that blasting occurs about twice a week – an
alarm is sounded to warn residents and within 30 minutes
blasting
takes place. Blasting results in the houses shaking and windows
rattling. In 2010 and as a result of the blasting taking
place close
to his house, cracks were caused around the doorframes. The walls and
houses of some residents also collapsed. Mining
operations have now
also resulted in less firewood due to fencing by the mine or trees
being removed for mining purposes. According
to Mr Dladla Tendele’s
mining operations have had a serious impact on the environment. On
the mining site there are massive
stockpiles of waste rock and the
production of coal sludge. This is known as slurry and is the liquid
coal waste produced by coal
mining activities. The waste slurry water
is toxic containing elements of mercury, arsenic, beryllium, cadmium,
nickel and selenium.
[45]
All in all, Mr Dladla points out that the quality of the environment
has been materially affected by the mining operations.
What was once
a quiet rural setting alongside the Wilderness area is now a vast
industrial rock dump. Efforts by his late father
in 2013 to engage
the regional manager of DMR about Tendele’s operations proved
futile.
[46]
On the issue of graves Mr Dladla avers that the site of the mining is
the residence of the communities that have always lived
there. The
fenced-off areas of the mine include some houses of people who always
lived there. This has given rise to conflict over
the issue of graves
in these areas. For instance, the cemetery of one group of residents
is located inside the Area 1 portion of
the mining operations. In
respect of the extended Area 2 at KwaQubuka the cemetery has been
fenced into the mining operations.
As such they are inaccessible to
the local residents who wish to visit them. Notices are posted at the
site of the graves which
inform the residents that they have a right
to negotiate with Tendele on the relocation of their family graves.
However, the notices
themselves are inaccessible to the local
residents as they are within the fenced off security area.
Furthermore, the access area
is extremely dangerous with trucks and
earthmoving equipment working in the vicinity. The graves are marked
by plastic tape only.
The graves at KwaQubuka are being damaged and
altered although they have not as yet been relocated. Many graves
have been moved
in other areas.
[47]
Against this backdrop I turn to consider whether the applicants have
made out a proper case for the relief sought.
Environmental
authorisations
[48]
The two pieces of legislation that are relevant here are NEMA (1998)
on the one hand and the MPRDA (2002) on the other. Both
statutes have
undergone substantial and significant changes over the years. It is
perhaps convenient to pause briefly in order
to deal with the issue
of environmental authorisations and listing notices prior to the
amendments which came into effect on 8
December 2014. In terms of
NEMA an applicant who intends to commence an activity specified in a
listing notice, needs an environmental
authorisation as contemplated
in s 24. The listing notices are promulgated by the Minister of
Environmental Affairs. The listing
notices identify the competent
authority for granting the environmental authorisation. 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.
[49]
The primary purpose of the MPRDA is to make provision for equitable
access to and sustainable development of the nation’s
mineral
and petroleum resources. In its preamble the MPRDA,
inter
alia
,
affirms the State’s obligations to protect the environment for
the benefit of present and future generations, to ensure
ecologically
sustainable development of mineral and petroleum resources and to
promote economic and social development. The objects
of the MPRDA are
set out in section 2.
[15]
[50]
Prior to 8 December 2014 the environmental impacts of mining were
regulated exclusively through the MPRDA (2002) and through
a
requirement under that Act to obtain an environmental management plan
(EMP) prior to commencing mining and to ensure that mining
takes
place in accordance with such an approved EMP. Section 22
[16]
of the MPRDA deals with applications for a mining right. Although the
application is made to the Minister in charge, it is lodged
with the
office of the regional manager in whose area the land is situated. In
terms of section 23 the Minister of Minerals and
Energy must grant a
mining right if the conditions specified in sub-section (a) to (h)
are met.
[51]
Prior to 8 December 2014, s 28(5) of the MPRDA provided that a mining
right came into effect on the date on which the environmental
management programme was approved in terms of s 39(4). Section 37
prescribed that the environmental management principles set out
in s
2 of NEMA (1998) applied (
a
)
to all prospecting and mining operations, as the case may be, and any
matters relating to such operations and (
b
)
served as guidelines for the interpretation, administration and
implementation of the environmental requirements of the MPRDA.
Section 38
[17]
provided for an
integrated environmental management and responsibility to remedy. The
holder of a mining right was required to
consider, investigate,
assess and communicate the impact of its mining on the environment as
contemplated in s 24(7) of NEMA and
had to manage all environmental
impacts in accordance with its approved mining EMP.
[52]
Section 39 (now repealed) of the MPRDA dealt with an environmental
management programme and environmental management plan.
In terms of s
39
“
(1)
Every person who applied for a mining right in terms of section 22
was required to conduct an environmental impact assessment
and to
submit an environmental management programme within 180 days of the
date on which he or she was notified to do so by the
regional
manager.
(2)
An applicant who prepared an environmental management programme or an
environmental management plan was required to
(a)
establish baseline information concerning the affected environment to
determine protection, remedial measures and environment
objectives;
(b)
investigate, assess and evaluate the impact of his or her proposed
prospecting or mining operations to
(i)
the environment;
(ii)
the socio-economic conditions of any person who might be directly
affected by the prospecting or mining operations; and
(iii)
any national estate referred to in s 3(2) of the National Heritage
Act, 1999 (Act No. 25 of 1999), with the exception of the
national
estate contemplated in section 3 (2) (i), (vi) and (vii) of that
Act.”
[53]
Section 40 provided that when considering an environmental management
plan or environmental management programme in terms of
section 39,
the Minister must consult with any State department which administers
any law relating to matters affecting the environment.
In terms of
section 39(6) an environmental management plan or an environmental
management programme could be amended by the Minister
after
consultation with the holder of a reconnaissance permission,
prospecting right, mining right or mining permit, as the case
may be.
[54]
In light of the above, it is evident that the position prior to 8
December 2014 was that the Minister of Minerals and Energy’s
decision to approve an applicant’s mining EMP and to grant the
mining licence effectively constituted the environmental
authorisation to conduct the mining activity. In terms of section
39(4)(b) of the MPRDA the Minister may not approve the environmental
management programme or the environmental management plan unless he
or she has considered (i) any recommendation by the regional
mining
development and environmental committee; and (ii) the comments of any
State Department charged with the administration of
any law which
relates to matters affecting the environment.
[55]
As I pointed out above NEMA and the MPRDA underwent significant
changes in 2008 and subsequently the ‘One Environmental
System’
was introduced by Government on 8 December 2014 through a number of
legislative amendments. These included amendments
to NEMA and to the
MPRDA. NEMA was amended by the National Environmental Amendment Act
62 of 2008
[18]
(NEMA Amendment
Act, 2008) and the National Environmental Management Laws Second
Amendment Act 30 of 2013 and the National Environmental
Management
Laws Amendment Act 25 of 2014. The MPRDA was amended by the MPRDA
Amendment Act 49 of 2008 (MPRDA Amendment Act, 2008).
[56]
The amended EIA regulations and the new listing notices which
accommodated the inclusion of mining among the listed activities
for
purposes of NEMA were promulgated on 4 December 2014 and came into
effect on 8 December 2014. The amendments to NEMA relating
to mining
and the amendment to the MPRDA came into effect on 8 December 2014.
In a government press release on 6 December 2014
it was stated that
the roll out of the One Environmental System would start on 8
December 2014. As the preamble to the NEMA Amendment
Act, 2008
provides, some of the objects of the Act are to further regulate
environmental authorisations, to empower the Minister
of Minerals and
Energy to implement environmental matters in terms of NEMA (1998)
insofar as it relates to prospecting, mining,
exploration or related
activities on a prospecting, mining, exploration or production area;
and to align environmental requirements
in the MPRDA (2002) with NEMA
(1998) by,
inter alia
, providing for environmental management
programmes.
Discussion
and findings
[57]
It is common cause that Tendele’s mining operations commenced
at Somkhele in 2006. These operations commenced pursuant
to the grant
of a mining right and subsequently a mining licence. The approval of
EMP’s for the respective mining areas were
dealt with by the
regional manager of the DMR on the dates already mentioned above. In
the absence of any evidence to the contrary
from the applicants, it
must be assumed that all the EMP’s were approved because they
met the requirements as prescribed
by the MPRDA at the time. It must
be borne in mind (as alluded to earlier) that at that stage and prior
to the implementation of
the One Environmental System in 2014, the
environmental impacts of mining were regulated exclusively through
the MPRDA. It was
a strict requirement under that Act for an
applicant to obtain an EMP prior to commencing mining so as to ensure
that mining takes
place in accordance with an approved EMP.
[58]
In attempting to make out a case for the relief claimed, the
applicants make the following allegation without any substantiation
in paragraph 36 of their founding affidavit:
“
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). This is procured
by making an application in
terms of section 24 of NEMA which is adjudicated by the Minister of
Environment (sic) (Ninth Respondent)
or the MEC (Third Respondent).
Section 24 provides a detailed and precise procedure for the
application in respect of EA. Such
process is referred to as EIA.”
[59]
This is followed by the following statement in paragraph 37:
“
Under
the former Act, the Environmental Conservation Act 73 of 1989 (ECA) a
similar authority was required.”
[60]
Both in its answering affidavit and in argument before me Tendele has
contended that the allegations as relied on by the applicants
in
paragraphs 36 and 37 above are patent errors when one has regard to
the issue of environmental authorisation in relation to
listed
activities as contained in the statutory framework. Tendele points
out
first
that applications for environmental authorisation
for mining operations or activities directly related thereto were
adjudicated
by the Minister of Mineral Resources and not by the
Minister of Environmental Affairs, and
second
that under the
ECA (1989) which preceded the introduction of the One Environmental
System in 2014, environmental authorisation
under any environmental
legislation was not required for mining operations or activities
directly related thereto.
[61]
To place matters in perspective it is necessary to have regard to
certain provisions of NEMA in its present form. Chapter 5
of NEMA
deals with “integrated environmental management”. The
purpose of the chapter as outlined in s 23(1) is to promote
the
application of appropriate environmental management tools in order to
ensure the integrated environmental management activities.
Section
23(2) of the chapter details the general objectives of integrated
environmental management which are 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 a particular activity is pursued in accordance
with
the principles of environmental management.”
[62]
Section 24 of NEMA is important as it deals with environmental
authorisations. The section provides as follows:
“
Environmental
authorisations
– (1) In order to give effect to the general objectives of
integrated environmental management laid down in this Chapter,
the
potential consequences for or impacts on the environment of listed
activities or specified activities must be considered, investigated,
assessed and reported on to the competent authority or the Minister
responsible for mineral resources, as the case may be, except
in
respect of those activities that may commence without having to
obtain an environmental authorisation in terms of this Act
(1A)
Every applicant must comply with the requirements prescribed in terms
of this Act in relation to –
(a)
steps to be taken before submitting an application, where applicable;
(b)
any prescribed report;
(c)
any procedure relating to public consultation and information
gathering;
(d)
any environmental management programme;
(e)
the submission of an application for an environmental authorisation
and any other relevant information; and
(f)
the undertaking of any specialist report, where applicable.”
[63]
In terms of s 24(2)(a) of NEMA, the Minister or an MEC with the
concurrence of the Minister is empowered to identify activities
which
may not commence without environmental authorisation from the
competent authority. The sub-section contains a proviso which
provides that where an activity falls under the jurisdiction of
another Minister or MEC, a decision in respect of paragraphs (a)
to
(d) of the section must be taken after consultation with such other
Minister or MEC. In terms of the definitions contained in
section 1,
a “listed activity” when used in Chapter 5 means an
activity identified in terms of section 24(2)(a) and
(d).
[64]
The legislative framework set out above relating to environmental
authorisations and activities, is very similar to that contained
in
the predecessor to NEMA
viz
the ECA (1989) under which the
Minister was required to identify activities which have a detrimental
impact on the environment and
required anyone intending to undertake
such an activity to go through an EIA process in order to assess such
impacts. Part of that
process involved public participation and only
once an applicant had ultimately satisfied the requirements of the
EIA process could
it proceed with the proposed activity.
[65]
Section 24F of NEMA deals with prohibitions relating to the
commencement or continuation of listed activities and provides
in
sub-section (1)(a) that
“
notwithstanding
any other Act, no person may commence an activity listed or specified
in terms of section 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.”
[66]
From all of the above it becomes apparent that the statutory
framework under the ECA dealing with environmental authorisations
required the actual listing of activities which could not commence
without such authorisation first being obtained. The listed
activities were generally published by the Ministers of Environmental
Affairs (and Tourism) from time to time. An examination of
the listed
activities as they were published between 1998 and 2006 reveals that
mining
per se
was not part of such listing. The first listing
of activities and competent authorities identified in terms of
sections 24 and
24D of NEMA were published by then the Minister of
Environmental Affairs and Tourism on 21 April 2006. Items 7 and 8 of
the schedule
relate specifically to mining: Item 7 deals with
reconnaissance, exploration, production and mining as provided for in
the MPRDA
(2002), as amended in respect of such permits and rights;
item 8 deals with permits and rights granted in terms of item 7 above
or any other right granted “in terms of previous mineral
legislation, the undertaking of any reconnaissance exploration,
productions or mining related activity or operation within a
exploration, production or mining area”, as defined in terms
of
section 1 of the MPRDA (2002).
[67]
In argument Mr
Lazarus
pointed out, correctly in my view, that
despite the inclusion of items 7 and 8 in the 2006 listing notices,
these items never came
into effect. It seems that this was solely
because until 2014 when the two statutes underwent the significant
changes alluded to
already, the environmental impacts of mining were
regulated exclusively under the MPRDA (2002) in terms of approved
EMP’s.
[68]
In light of the above one of the fundamental difficulties facing the
applicants is that they have simply failed to identify
precisely what
activities Tendele has embarked upon without obtaining the necessary
environmental authorisations therefor. In my
view the general
statement contained in paragraph 36 of their founding affidavit does
not go far enough to establish a proper cause
of action on the issue
of any illegality on the part of Tendele. In reply and whilst the
applicants concede that there are no listed
activities relating to
mining as a special category, they nonetheless aver that there are a
host of listed activities which are
associated with mining. They rely
in this regard on a table put up as annexure ‘R1’ to the
replying affidavit. Again,
no attempt is made by them to identify
these activities or when they commenced. In sub-paragraph 4.3 of
their heads of argument
they attempt to put up some sort of list by
making the following submission:
“
4.3
Though mining only became a listed activity following the NEMA
amendments which came into effect in December 2014, the First
Respondent would have had to execute a number of listed activities
pursuant to engaging in mining operations, these would include
the
following listed activities, amongst a list of others:
4.3.1
The construction of facilities or infrastructure for the storage of
coal;
4.3.2
The construction of facilities or infrastructure for the storage of
hazardous waste;
4.3.3
The construction of facilities or infrastructure for the off-stream
storage of water, including dams and reservoirs.”
[69]
The general rule in motion proceedings is that an applicant must
stand or fall by the founding affidavit and the facts alleged
in it.
It is certainly not permissible to make out a case or allege new
grounds in reply. In the present matter the applicants
have not only
failed to make out a proper case in their founding affidavit but
their belated attempt in their replying affidavit
in putting up a
document (annexure R1) without any elaboration of its contents in the
affidavit itself, cannot be permitted. In
any event, even if they
were permitted to make such a case, they have failed to pinpoint when
these activities were listed (whether
in terms of the ECA regulations
in 2006 or in terms of NEMA in 2010) and when Tendele commenced with
them without obtaining the
necessary environmental authorisations.
[70]
The second and perhaps the most important hurdle facing the
applicants on the issue of environmental authorisations relates
to
the transitional arrangements contained in the One Environmental
System that came into effect on 8 December 2014. These are
contained
in section 12 of the NEMA Amendment Act, 2008 and read as follows:
“
12.
Transitional provisions –
(1)
Anything done or deemed to have been done under a provision repealed
or 25 amended by this Act—
(a)
remains valid to the extent that it is consistent with the principal
Act as amended by this Act until anything done under the
principal
Act as amended by this Act overrides it; and
(b)
subject to paragraph
(a), is
considered to be an action under
the corresponding 30 provision of the principal Act as amended by
this Act.
(2)
An application for authorisation of an activity that is submitted in
terms of Chapter 5 of the principal Act and that is pending
when this
Act takes effect must, despite the amendment of the principal Act by
this Act, be dispensed with in terms of Chapter
5 of the principal
Act as if Chapter 5 had not been amended. 35
(3)
Section 24G of the principal Act applies with the changes required by
the context in respect of any activity undertaken in contravention
of
section 22 of the Environment Conservation Act, 1989 (Act No. 73 of
1989), if such activity is a listed activity under the principal
Act.
(4)
An environmental management plan or programme approved in terms of
the Mineral and Petroleum Resources Development Act, 2002 (Act
No. 22
of 2002) immediately before the date on which this Act came into
operation must be regarded as having been approved in terms
of the
principal Act as amended by this Act.
(5)(a)
Notwithstanding sub-section (4), the Minister of Minerals and
Energy may direct any holder or any holders of an old order right,
if
he or she is of the opinion that the prospecting, mining, exploration
or production operations in question are likely to result
in
unacceptable pollution, ecological degradation or damage to the
environment, ecological degradation or damage to the environment,
to
take such action to upgrade the environmental management plan or
programme to address the deficiencies in the plan or programme
as the
Minister may direct in terms of the principal Act as amended by this
Act.
(b)
For the purposes of this sub-section, “Minister of Minerals and
Energy”, “holder” and “holder
of an old order
right” have the meanings assigned to them in section 1 of the
principal Act as amended by the Act.
(6)
Any appeal lodged in terms of
section 96
of the
Mineral and Petroleum
Resources Development Act, 2002
, against a decision in respect of
environmental aspects, that is pending on the date referred to
section 14
(2) (b) of the
National Environmental Management Amendment
Act, 2008
must be dealt with in terms of the
Mineral and Petroleum
Resources Development Act, 2002
.
(7)
An application for a right or permit in relation to prospecting,
exploration, mining or production in terms of the
Mineral and
Petroleum Resources Development Act, 2002
that is pending on the date
referred to in
section 14
(2) (b) of the
National Environmental
Management Amendment Act, 2008
, must be dispensed of in terms of that
Act as if that Act had not been amended.”
(My
emphasis)
[71]
It would seem to me that the transitional provisions contained in s
12 above adequately caters for the position of a mining
operator such
as Tendele as at 14 December 2014 when the amendment took effect. I
am accordingly in agreement with the submissions
advanced on behalf
of Tendele which are to the following effect:
71.1
The
first
is that properly
interpreted, section 12(4) of the NEMA Amendment Act has the
consequence that an EMP approved in terms of the MPRDA
before the
coming into effect of the NEMA Amendment Act has the status of an
environmental authorisation under NEMA. Section 12(4)
of the NEMA
Amendment Act provides that an EMP approved in terms of the MPRDA
immediately before the commencement date of the provisions
of the
NEMA Amendment Act, 2008 dealing with prospecting, mining and related
activities, must be regarded as having been approved
in terms of NEMA
as amended. The purpose of the transitional provision is no doubt to
entitle the holder of an EMP that was lawfully
conducting mining
operations in terms of the applicable statutory provisions as at 8
December 2014 to continue to do so after that
date. One can well
imagine what would have happened if this was not the case: the result
would have been to render existing lawful
mining operations unlawful
overnight. This would have been an unreasonable, insensible and
unbusinesslike result.
[19]
Section 12(4) clearly seeks to avoid such a consequence.
71.2
This argument by Tendele is supported by the presumption against
retrospective interpretation of statutes. A statute is retrospective
“if it takes away or impairs a vested right acquired under
existing laws, or creates a new obligation, or imposes a new duty,
or
attaches a new disability, into events already past”.
[20]
Our courts have consistently established that no statute is to be
construed as having a retrospective effect unless the Legislature
clearly intended that result:
“
One
may start the conspectus by stating the time-honoured principle
formulated in
Peterson
v Cuthbert and Company Ltd
1945
AD 420
at 430, based upon the Roman-Dutch Law, that no statute is to
be construed as having retrospective operation (in the sense of
taking
away or impairing a vested right acquired under existing
laws), unless the Legislature clearly intended the statute to have
that
effect (see also,
inter
alia
,
Bartman
v Dempers
1952
(2) SA 577
(A) at 580C).”
[21]
71.3
As at 7 December 2014 Tendele had a vested right to conduct mining
operations at Somkhele in terms of valid mining rights and
the
approved EMP’s. If the enactment of the One Environmental
System was intended to extinguish that right and overnight
to render
Tendele’s existing mining operations unlawful, it would have
had to contain a clear indication that this is what
the Legislature
intended. On the contrary s 12(4) of the NEMA Amendment Act clearly
provides that a previously valid EMP is regarded
as having been
approved of in terms of s 24N of NEMA. As I alluded to earlier,
Tendele’s EMP’s in relation to Areas
1, 2 and 3 were
approved by the regional manager prior to 8 December 2014 and
therefore must be regarded as having been approved
in terms of NEMA
as amended by the NEMA Amendment Act, 2008.
71.4
The new s 38B of the MPRDA, inserted by Act 49 of 2008 contains what
may be regarded as a further transitional provision, however
it has
not yet come into operation. Section 38B reads as follows:
“
38B.
Approved
environmental management plans and environmental plans.
–
(1)
An environmental management plan or environmental management
programme approved in terms of this Act before and at the time
of the
coming into effect of the
National Environmental Management Act,
1998
, shall be deemed to have been approved and an environmental
authorisation been issued in terms of the National Environmental
Management
Act, 1998.
(2)
Notwithstanding subsection (1), the Minister may direct the holder of
a right, permit or any old order right, if he or she is
of the
opinion that the prospecting, mining, exploration and production
operations is likely to result in unacceptable pollution,
ecological
degradation or damage to the environment, to take any action to
upgrade the environmental management plan or environmental
management
programme to address the deficiencies in the plan or programme.
(3)
The Minister must issue an environmental authorisation if he or she
is satisfied that the deficiencies in the environmental
management
plan or environmental management programme in subsection (2) have
been addressed and that the requirements in Chapter
5 of the
National
Environmental Management Act, 1998
, have been met.”
71.5
The
second
is that if there were any defects in the manner in
which Tendele was conducting its mining operations in terms of its
pre-existing
EMP’s, the Minister of Minerals and Energy is
empowered to take action against Tendele to address such
deficiencies. This
power is exercised by the Minister in terms of
s
12(5).
In terms of the sub-section, if the Minister of Minerals and
Energy forms the opinion that the prospecting or mining operations
are likely to result in unacceptable pollution, ecological
degradation or damage to the environment, the Minister may direct any
holder or any holder of an old order right to take such action to
upgrade the environmental management plan or programme to address
the
deficiencies in the plan or programme as the Minister may direct in
terms of the principal Act as amended by the NEMA Amendment
Act,
2008. 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 EMP’s
and the manner in which it conducts its
mining operations at
Somkhele. In any event there is no evidence whatsoever on the papers
that point to a complaint/s being lodged
with the Minister directly
in this regard.
71.6
The
third
relates to section 24L(4)
of NEMA which empowers the Minister to regard an approved EMP to be
an environmental authorisation in
terms of NEMA provided certain
conditions are met. Section 24L
[22]
deals with the alignment of environmental authorisations. Sub-section
(4) provides that:
“
A
competent authority empowered under Chapter 5 to issue an
environmental authorisation may regard an authorisation in terms of
any other legislation that meets all the requirements stipulated in
section 24 (4) (a) and, where applicable, section 24 (4) (b)
to be an
environmental authorisation in terms of that chapter.”
71.7
The Minister responsible for mineral resources remains the competent
authority empowered under Chapter 5 of NEMA to issue an
environmental
authorisation. On a proper interpretation of sub-section (4) and read
in context, it is evident that Tendele’s
EMP’s constitute
“an authorisation in terms of any other legislation.” As
I already pointed out, Tendele’s
EMP’s pre-date the
introduction of the One Environmental System in 2008 which came into
effect on 8 December 2014.
71.8
From the above 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 EMP’s. He also seems to be satisfied that
such EMP’s 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.
71.9
In light of all the above, I must accordingly conclude that the
applicants have simply failed to make out a proper case for
an
interdict (temporary, structural or otherwise) on this aspect. I
proceed to address the further complaints raised by the applicants.
Land
use approvals
[72]
In support of their contentions that Tendele has no land use
authority, approval or permission from any municipality having
jurisdiction, the applicants aver that Tendele is undertaking mining
operations in contravention of the KwaZulu-Natal PDA, the
Mtubatuba
By-law and SPLUMA (the Spatial Planning and Land use Management Act).
In particular they contend that section 38 of the
KwaZulu-Natal PDA
requires municipal approval for the development of land situated
outside the area of a land use scheme; section
46 of the Mtubatuba
By-law similarly requires municipal planning approval for the
development of land situated outside the area
of a land use scheme,
and lastly that section 26(3) of SPLUMA provides that:
“
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
[which include “mining purposes”] and
for which such land
was lawfully used or could lawfully have been used immediately before
the commencement of this Act”.
[73]
The following further allegations are contained in paragraphs 65 and
66 of the founding affidavit:
“
65
The
area in which mining is taking place by Tendele was hitherto part of
the Hlabisa Local Municipality (Sixth respondent). On 18
January 2008
the Municipal Demarcation Board gave notice in terms of
section 21
of
the
Local Government: Municipal Demarcation Act 27 of 1998
that the
boundaries would change. The changes were set out in the Provincial
Gazette dated 18 January 2008. I annex hereto a copy
marked ‘K’
hereto.
66
In
due course the MEC for Co-operative Governance and Traditional
Affairs for KwaZulu-Natal issued a proclamation dated 16 May 2011
as
Provincial Notice No. 49 altering the boundary between Hlabisa
Municipality and Mtubatuba Municipality with the effect that
Reserve
3 was henceforth in the Mtubatuba Municipality. I annex hereto a copy
thereof marked “L”. This notice refers
to the demarcation
notice referred to above.”
[74]
In paragraph 67 of the founding affidavit the applicants point out
that both local municipalities (Hlabisa and Mtubatuba) advised
their
attorney that no planning approval or land use approval was required
for mining operations undertaken by Tendele at Somkhele.
The
applicants’ further point out that while the land on which the
mining rights have been granted is Ingonyama Trust land,
the
Mtubatuba Municipality had full jurisdiction over the land in the
functional area of municipal planning since 16 May 2011 and
before
that it was the Hlabisa Municipality. The applicants contend that in
terms of
s 38
of the KwaZulu-Natal PDA municipal approval was
required for any development of the land and that such approval was
required to
be given by the municipality having jurisdiction. They
further contended that in terms of
s 43(2)
of the Integrated
Development Plan (IDP) the municipality concerned was required to
take into account,
inter alia
, the protection or preservation
of cultural and natural resources and biodiversity and the potential
impact of the proposed development
on the environment, socio-economic
conditions and cultural heritage.
[75]
In light of the above, Mr
Dickson
submitted
first
that the exercise of a
mining right in terms of the MPRDA is subject to the provisions of
SPLUMA and the KwaZulu-Natal PDA and therefore
such right may only be
exercised if a development application has been submitted and the
zoning scheme in terms of SPLUMA and the
KwaZulu-Natal PDA permits
mining on the said land; and that
second
this was because the
municipality is the exclusive authority in respect of municipal
planning which includes land use. In support
of these submissions Mr
Dickson
placed reliance on the
judgments of the Constitutional Court in the matters of
Maccsand
(Pty) Ltd v City of Cape Town and Others
,
[23]
and
Johannesburg
Metropolitan Municipality v Gauteng Development Tribunal
.
[24]
[76]
The
Johannesburg Metropolitan
matter had to do with the
meaning of “municipal planning” a term not defined in the
Constitution. The court found that
“planning” in the
context of municipal affairs
“
is
a term which has assumed a particular, well-established meaning which
includes the zoning of land and the establishment of townships.
In
that context, the term is commonly used to define the control and
regulation of the use of land. There is nothing in the Constitution
indicating that the work carries a meaning other than the common
meaning which includes control and reputation of the use of land.
It
must be assumed, in my view, that when the Constitution drafters
chose to use ‘planning’ in the municipal context,
they
were aware of its common meaning. As a result I find that the
contested powers fall part of ‘municipal planning.’”
[25]
[77]
At the heart of the dispute in the
Maccsand
matter was the
interplay in the mining sector between the MPRDA (2002), on the one
hand, and on the other, the Land Use Planning
Ordinance (LUPO) and
NEMA (1998). LUPO is a pre-Constitution Legislation which came into
force in July 1986. It constitutes provincial
legislation that was
enacted by the Provincial Council of the former Cape of Good Hope.
The interim Constitution permitted it to
continue in force subject to
amendment or repeal by the competent authority. While as national
legislation the MPRDA applies throughout
the country, LUPO on the
other hand applied only in three provinces: the Western Cape, parts
of the Eastern Cape and parts of the
North West Province. While the
MPRDA governs mining, LUPO regulated the use of land. However, it had
no application in KwaZulu-Natal
where land use was regulated
primarily by the KwaZulu-Natal Town Planning Ordinance, 27 of 1949
(“the KwaZulu-Natal Town
Planning Ordinance”). The
KwaZulu-Natal PDA only came into operation on 1 May 2010. I deal
hereunder with the relevant provisions
of these two pieces of
legislation insofar as they have a bearing on the issue of land use
as raised by the applicants.
[78]
Section 11(2)(a) of the KZN Town Planning Ordinance provided that:
“
No
person shall without the prior authorisation of the responsible
member of the Executive Council, develop within the meaning of
the
section any land whether inside or outside the municipal area …”
[79]
In the matter
of
Mtunzini Conservancy v Tronox KZN Sands (Pty) Ltd and another
,
[26]
the Durban High Court (per Vahed J) considered the ambit of the above
provision and concluded that since the Ordinance did not
regulate
mining operations (at least prior to the amendment of the Ordinance
on 10 October 2008 which catered for mining specifically),
the
commencement of such activities prior to October 2008 did not require
municipal consent for the purposes of the Ordinance.
[80]
As already mentioned, Tendele’s operations commenced before 10
October 2008. Prior to Tendele’s involvement in
mining
operations at Somkhele in 2006, other mining companies and entities
were already mining in that area pursuant to,
inter alia
,
mining rights issued under the now repealed Mineral’s Act (see
the “history of mining in the Somkhele area”
as outlined
above ). In
Tronox
,
supra,
Vahed J concluded, correctly
in my view, that mining authorisations granted in terms of the
Minerals Act were only subjected to
that Act and no other. Whilst
Tendele took over some of those mining rights as well as prospecting
rights which were later converted
to mining rights in some of the
reserves (see the various mining rights held by Tendele in the areas
concerned as outlined above),
no municipal consent was required in
terms of the Ordinance.
[81]
As far as the KwaZulu-Natal PDA is concerned, this Act came into
operation on 1 May 2010. Section 38(1) of the Act provides
that:
“
The
development of land situated outside the area of a scheme may only
occur to the extent that it has been approved by a municipality
in
whose area the land is situated.”
[82]
Section 38(3) of the Act defines “development” to mean –
“
the
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”.
[83]
It is evident from the above definition of “development”
that KwaZulu-Natal PDA did not intend to regulate existing,
lawful
mining (or building, construction or engineering operations) but only
those operations which involve a material change to
the existing use
of any building or land without subdivision. This is no doubt that in
keeping with the general principle that
statutes should not be
construed as having a retrospective effect unless it is clear that
the Legislature intended that result
and furthermore, when the words
“develop” and “development” are used in
Chapter 4 of the KwaZulu-Natal
PDA,
[27]
it is evident that they are intended to refer to proposed
developments and not intended to cover existing developments. That
seems
to appear from the references in the Chapter to persons who may
“
initiate
the development of land
”
,
[28]
the procedure that must be followed for the development of land and
in particular what the “
proposa
l
for the development of land” may include,
[29]
the duties of the municipality in considering a “
proposal
”
for the development of
land,
[30]
the matters the
municipality must take into account when considering the merits of a
“
proposal
to develop land”,
[31]
the discretion afforded to the municipality in deciding on the
“
proposed
development of land
”
[32]
and when and in what circumstances the right granted by the
municipality for the development of land will lapse.
[33]
(My emphasis).
[84]
The above interpretation is consistent with and accords with the
ordinary meaning of the word “development” which
means
“the process of converting [land] to a new purpose by
constructing buildings or making use of its resources”.
[34]
I accordingly agree with Mr
Lazarus
that since Tendele was
already conducting its mining operations at Somkhele at the time that
the KwaZulu-Natal PDA came into operation
on 1 May 2010 and at the
time when the Act was assented to on 5 December 2008, it is apparent
that its operations do not fall within
the definition of
“development” contained in section 38(3) and as such they
do not require municipal consent to continue.
[85]
As far as the Mtubatuba By-law is concerned, section 46 thereof
provides that municipal approval is required for the undertaking
of
mining operations outside the area of a land use scheme. Section 46
of the By-law read with Schedule 3 defines a “mining
operation”
to mean:
“
the
processing of any mineral as defined in section 1 of the Mineral and
Petroleum Resources Developement Act on, in or under the
earth, water
or residue deposit, whether by underground or open workings or
otherwise –
(a)
if a mining right contemplated in
section 22
of the
Mineral and
Petroleum Resources Development Act is
required or has been granted
for the operation, but processing has not commenced by 10 October
2008, or
(b)
if a mining right has been granted in terms of a repeated law for the
operation, but processing has not commenced by 10 October
2008.”
[86]
The operative date in the above definition is 10 October 2008. The
factual position is that Tendele’s mining operations
which
include “processing” (as defined in the MPRDA)
[35]
commenced in 2006 and as such do not fall within the definition of
“mining operation” as contained in the Mtubatuba
By-law.
Additionally, the mining operations at Somkhele are recognised within
the Mtubatuba’s municipality’s special
development
framework for the Mtubatuba municipal area (“Mtubatuba SDF”).
There is no dispute that the Mtubatuba SDF
is a principle strategic
special planning instrument which guides and informs all planning,
land and management, development and
spatial decision-making by the
municipality. In fact the Mtubatuba SDF recognises (a) that
Somkhele’s coal mining operations
constitute an important
economic base for the area and (b) that Somkhele will serve as a
nucleus for further development and rural
settlement in order to
improve quality of life and access to services. In the circumstances
it seems that Tendele’s operations
are being undertaken in
accordance with all applicable land use planning tools and are
expressly recognised in the Mtubatuba IDP
as well as the SDF.
[87]
As far as the Spatial Planning and Land Use Management Act 16 of 2013
(SPLUMA) is concerned, this Act came into effect on 1
July 2015.
Section 26 of SPLUMA is titled “Legal effect of land use
scheme”. It provides in subsection 2 that land
may be used only
for the purposes permitted by a town planning scheme (until such
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 certain
circumstances. It provides that:
“
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.”
[88]
Schedule 2 of the SPLUMA includes in the list of land-use purposes
“mining purposes” which are defined in the Schedule
to
mean “purposes normally or otherwise reasonably associated with
the use of land for mining.” It is evident that
the purpose of
section 26(3) is to maintain the existing land use regime applicable
to land to which no town planning scheme or
land use scheme applies
for the period after SPLUMA. It seems to me that the only way it can
achieve this is by allowing the use
of land for certain purposes to
continue where the land was lawfully being used for that purpose
immediately before the commencement
of SPLUMA on 1 July 2015. From a
factual point of view Tendele’s mining operations at Somkhele
pre-dated the commencement
of SPLUMA and were lawful at the time that
SPLUMA commenced. As the applicants attorneys were informed by the
respective municipalities,
(Hlabisa and Mtubatuba), no municipal
consent was required as no town planning scheme or land use scheme
applies to land where
mining operations are being conducted by
Tendele. Accordingly, it seems that the continuation of mining
operations is not in breach
of the provisions of SPLUMA.
Issue
of graves
[89]
The case made out by the applicants is that Tendele has damaged,
altered, exhumed and removed traditional graves from their
original
positions without the necessary written approval in terms of section
35 of the KZN Heritage Act. Section 35 reads as follows:
“
35.
General
protection
:
Traditional burial places. - (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.”
[90]
The KZN Heritage Act defines “council” as being the AMAFA
a KwaZulu-Natali Heritage Council (AMAFA) established
in terms of
section 5(1) of the KZN Heritage Act.
[91]
In its answering affidavit Tendele has openly accepted that it has
previously removed or altered traditional graves without
being in
possession of the necessary authorisations from AMAFA. It points out,
however, that all relocations of traditional graves
that have taken
place have nevertheless occurred in consultation with the affected
families and communities. It goes on to aver
that in more recent
times it has engaged in extensive consultations with AMAFA in an
effort to ensure that its continued conduct
in relation to
traditional graves is wholly within the law. The process undertaken
by Tendele in relation to the graves has been
dealt with extensively
by Mr
Du Preez
in sub-paragraphs 123.1 – 123.14 of the
answering affidavit (none of which have been contested). I see no
need to repeat same
herein save to state that it is evident therefrom
that whilst Tendele had, in the past, conducted relocations of
traditional graves
without the necessary authorisation from AMAFA, as
soon as its omission was realised it began engaging with AMAFA on how
to remedy
the omission going forward.
[92]
AMAFA has been cited in these proceedings as the ninth respondent. I
have no doubt that it would have said something regarding
Tendele’s
conduct if it was not satisfied with the manner in which traditional
graves were being relocated in terms of the
KZN Heritage Act. Mr Du
Preez has pointed out in the answering affidavit that there has been
a series of engagements and interactions
between AMAFA and Tendele
and that Tendele has repeated its undertaking that it will continue
to work with AMAFA to ensure that
any future relocations will comply
with the letter and spirit of the law.
[93]
In light of the above, I consider that on the uncontested facts in
the answering affidavit, the applicants have simply failed
to make
out a proper case for an interdict. There are, in my view, no facts
put up by the applicants that would justify any reasonable
apprehension that Tendele will continue to relocate or exhume
traditional graves without the appropriate statutory safeguards.
Waste
Management Licences
[94]
The applicants complain that Tendele’s mining operations are
unlawful as it does not have a waste management licence
in respect of
its activities as required under the Waste Act. Like NEMA the Waste
Act is really environmental legislation sourced
in terms of section
24 of the Constitution. The Waste Act (s 20) prohibits any person
carrying on a waste management activity from
doing so except in
accordance with the standards set out in section 19(3) for that
activity or in terms of a waste management licence
issued in respect
of that activity.
[95]
“Waste” in terms of the Waste Act is defined to include
all the waste included in schedule 3 to the Act. Schedule
3 includes:
(a)
“hazardous waste” which includes residue stockpiles and
Item 4 which includes the activity of the “Pyrolytic
treatment
of coal.”;
(b)
“residue stockpile” which includes the waste from a
mining operation, and which include in Item 1, waste from mining.
[96]
The applicants accordingly contend that section 20 read with the
definition of “waste management activity” and
the various
categories of waste associate with mining operations requires a waste
management licence.
[97]
In paragraph 94 of their founding affidavit the applicants assert the
following:
“
On
the site of Tendele’s mining there are massive stockpiles of
waste rock and the production of coal sludge. This is known
as slurry
and is the liquid coal waste produced by coal mining activities. When
the coal is crushed and washed this liquid waste
is generated, along
with the huge stockpiles of solid waste. Even the waste slurry water
is toxic containing mercury. Arsenic,
beryllium, cadmium, nickel and
selenium.”
[98]
The applicants contend that Tendele’s non-compliance in the
respects set out above evidences proof that it is conducting
mining
operations in Reserve 3 illegally.
[99]
Tendele on the other hand avers first, that the applicants have
failed in the founding papers to identify any aspect of Tendele’s
operations that would require a waste management licence and that
this ground of alleged unlawfulness is unsustainable on the
pleadings; and, second, that even if their pleadings were not
defective, Tendele does not require a waste management licence to
continue its operations at Somkhele.
[100]
I consider that there is some merit in the case made out by Tendele
for the reasons set out hereunder:
100.1
A “waste management activity” is defined as any activity
listed in Schedule 1 or published by notice in the
Government
Gazette
under
section 19.
[36]
100.2
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
that have or are
likely to have a detrimental effect on the environment (“the
2013 listing notice”)
[37]
100.3
The 2013 listing notice contains transitional provisions the purpose
of which are to regularise the affairs of persons who
were in the
process of conducting waste management activities at the time of
publication of the listing notice.
100.4
Regulation 7(1) of the 2013 listing notice provides that:
“
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.”
[101]
From the above it is apparent a person who was conducting a listed
waste management activity lawfully as at 29 November 2013
(when the
2013 listing notice came into effect) or on 24 July 2015 when the
2013 licence notice was amended to include activities
related to
residue stockpiles and residue deposits, is entitled to continue
conducting such activity without a waste management
licence until
such time as they are called upon by the Minister by Notice in the
Gazette
to apply for such licence.
[102]
I accordingly find that on the available evidence Tendele’s
mining operations at Somkhele were undertaken lawfully in
terms of
approved EMP’s as already dealt with above. The Minister of
Environmental Affairs has not yet called upon Tendele
to apply for a
waste management licence as provided for in regulation 7(1) of
the 2013 listing notice (as amended on 24 July
2015). The Minister of
Environmental Affairs has been cited as the fourth respondent in
these proceedings. I have no doubt that
he/she would have had
something to say if it was found that Tendele was acting unlawfully.
Maledu
judgment and parties’ submissions
[103]
As I mentioned at the commencement of this judgment counsel were
afforded an opportunity of making further submissions in
light of the
findings in
Maledu
and whether these have any material bearing
on the issues in the present matter. Placing reliance on
Maledu
counsel for the applicants made the following submissions which I
quote in full here below:
“
1.
….
2.
The issues which arise in the judgment which are supportive of
Applicants’ case are the following:
2.1
The Members of Second Applicant and Third Applicant are Occupiers of
Land whose tenure is legally insecure. The protection for
such
occupiers is confirmed in the Constitutional Court Judgment (“the
Judgment”) at paras 1 – 5.
2.2
In the Courts analysis of the MPRDA set out in paragraphs 50 to 59
the following findings are recorded:-
2.2.1
That Section 22 of the MPRDA provides that a person who wishes to
apply for a mining right must simultaneously apply for an
environmental approval (para 53).
2.2.2
A mining right holder is obliged to exercise his rights
civiliter
modo
causing the least possible inconvenience (para 58 –
59).
2.3
The importance of the notification and consultation with affected
parties was emphasized with reference to the Bengwenyama Minerals
case at paragraphs 78 – 81. A fundamental part of the EIA
process under NEMA is the consultation process.
2.4
Usually a mining right is a limited real right on the land to which
the right relate. It usually only grants the right-holder
access to
the land. Where the nature of the mining right is invasive (it is
submitted that open cast mining is totally invasive)
it would intrude
totally on the rights of the occupier. In these circumstances the
mining-right holder must comply with IPILRA
(The Interim Protection
of Informal Rights Act 31 of 1996) (Paragraph 101 – 105).
2.5
Similarly, a mining-rights holder must comply with all applicable law
which has a bearing on the right, such as planning or
zoning law
which requires Land Use permission (paragraph 106). This issue was
fully argued in the instant case with regard to SPLUMA,
the PDA, the
AMAFA Act, the Waste Act and NEMA.
2.6
It is also inherent that the actual occupiers must be consulted and
deals may not be made on their behalf with Traditional Leaders.
(Paragraph 22 and 108).
3.
It is submitted that these aspects covered in the judgment support
Applicants’ case.”
[104]
I pointed out already that the
Maledu
matter dealt primarily
with two competing rights in the context of evictions. The competing
rights were those of holders of informal
rights to land to occupy and
enjoy their land on the one hand and on the other the rights of the
holder of mining rights issued
in terms of the MPRDA to mine on the
same land. The issue thus arose in the context of an interdict
application in which the holders
of the mining right sought to evict
the holders of informal rights to land from their land for mining
purposes. The judgment turned
largely on the interpretation of
section 54 of the MPRDA which the court held provides a mechanism for
the resolution of these
competing rights, which mechanism must first
be exhausted before recourse is had to the courts.
[105]
In the present matter the primary issue is whether Tendele had the
necessary statutory authorisations to conduct mining operations
at
Somkhele. Just to recap: the applicants’ complaints were that
Tendele had no environmental authorisation in terms of NEMA,
no
land-use authorisation from any municipality having jurisdiction, no
waste management licence and no written approval to damage,
alter,
exhume or remove any traditional graves in terms of the KZN Heritage
Act. The applicants according sought an interdict in
the terms set
out above. The role and interpretation of s 54 of the MPRDA was never
raised in this matter and accordingly plays
no role in the relief
sought by the applicants.
[106]
I agree fully with the submissions advanced by Mr
Lazarus
on
behalf of Tendele that
Maledu
has no direct relevance to the
issues that arose in the present matter. From what follows it becomes
abundantly clear that the
applicants’ reliance on the findings
in
Maledu
is not only misplaced but is rather opportunistic:
106.1
In paragraph 2.1 of the applicants’ submissions, the applicants
point out that the members of the second and third applicants
are
occupiers of land whose tenure is legally insecure and the
Constitutional Court has now confirmed the need to protect such
occupiers. This issue was never in dispute in the present matter. As
mentioned above, the applicants sought to interdict Tendele
from
mining at the Somkhele mine on the basis that Tendele was allegedly
mining without the requisite statutory authorisations.
The applicants
did not allege that Tendele deprived them of their informal rights to
land. No such relief was sought against Tendele.
106.2
In paragraph 2.2.1 of their submissions, the applicants refer to the
Constitutional Court’s discussion of section 22
of the MPRDA
which provides, amongst others, that any person who wishes to apply
for a mining right must simultaneously apply for
an environmental
approval. The applicants do not elaborate on how this referral
supports their case. As dealt with in this judgment,
the requirement
to apply for and be granted an environmental authorisation prior to
the grant of a mining right was introduced
into the MPRDA on 8
December 2014 with the introduction of the One Environmental System.
The legislative amendments provide for,
inter alia
, the
continuation of mining operations lawfully conducted prior to the
amendments. The effect of the transitional arrangements
is that
Tendele’s EMPs are deemed to constitute sufficient
authorisation for its current mining operations and a separate
environmental authorisation in terms of NEMA is not required.
106.3
In paragraph 2.2.2 of their submissions, the applicants refer to the
Constitutional Court’s observation that a
mining right holder
is obliged to exercise his rights
civiliter modo
, causing the
least possible inconvenience. The relevance of the Constitutional
Court’s observation of this principle to the
present matter is
unclear as there are no allegations in the applicants’ papers
that Tendele is not mining
civiliter modo
and no relief is
sought by the applicants in this regard. In particular, the
applicants’ case is that Tendele is mining unlawfully
not
that it is mining unreasonably
.
106.4
In paragraph 2.3 of their submissions, the applicants refer to the
Constitutional Court’s emphasis on the importance
of
notification and consultations with affected parties in the grant and
exercise of mining rights. Once again, the relevance of
this aspect
of the Constitutional Court’s judgment to the present matter is
unclear as none of the relief sought by the applicants
is based on
any allegation that Tendele did not notify and consult with the
applicants or any other affected parties in its application
for its
mining rights or in its exercise thereof.
106.5
In this regard I must point out that there is not a single reference
either in the applicants papers or in their heads of
argument to the
issue of “consultations” with affected parties as they
now seem to be relying on. In fact they allege
no breach of the
requirements as prescribed either in s 10 or s 22(4)(b) of the MPRDA
(2002) in this regard. Neither in their heads
of argument nor in oral
submissions did the applicants counsel refer to the principles set
out in the matter of
Bengwenyama Minerals (Pty) Ltd v Genorah
Resources (Pty) Ltd
[2010] ZACC 26
;
2011 (4) SA 113
(CC);
2011 (3) BCLR 229
(CC) at para 63, relating to consultations with
interested and affected parties. The closest that the applicants ever
got to the
issue of “consultations” was in argument when
the words “public participation” were used by Mr Dickson
in relation to the 2016 mining rights granted to Tendele.
106.6
In paragraph 2.4 of their submissions, the applicants refer to the
Constitutional Court’s findings in regard to the
Interim
Protection of Informal Land Rights Act, 1996 (“
IPILRA
”).
There are no allegations in regard to IPILRA in the applicants’
papers and the applicants do not seek any relief
based on their
rights in terms of IPILRA. Consequently, the reference to this aspect
of the Constitutional Court’s judgment
is unclear in the
context of the present matter.
106.7
In paragraph 2.5 of their submissions, the applicants refer to the
Constitutional Court’s confirmation of the principle
that a
mining right holder must comply with all applicable law which has a
bearing on the right “
such as planning or zoning law which
requires Land Use permission.
” This issue, the applicants
allege “
was fully argued in the instant case with regard to
SPLUMA, the PDA, the AMAFA Act, the Waste Act and NEMA
.” At
no stage ever did Tendele dispute that it was required to comply with
all applicable laws which have a bearing on its
mining rights. In
regard to the applicants’ contention that Tendele’s
mining operations are unlawful because it has
no land-use permission
from any municipality having jurisdiction, I have found that
Tendele’s mining operations pre-date
the introduction of mining
as a land use requiring municipal approval.
Conclusion
[107]
Based on the findings made above, I conclude that the applicants have
failed to make out a proper case for the relief as claimed
or for
such other relief as was contended for on their behalf. The
applicants have simply failed to put up cogent evidence to support
their contentions that Tendele is mining unlawfully and without the
requisite authorisations, environmental or otherwise. The various
statutes relied on by the applicants create regulatory authorities
who are empowered to enforce compliance with the statutes they
administer. The applicants have not afforded the authorities
concerned the opportunity to fully investigate their complaints
before
deciding to institute these proceedings. It is one thing to
allege a statutory breach, it is quite another to provide proof of
non-compliance. The allegations relied on by the applicants were, in
my view, rather vague, generalised and unsubstantiated. This
was the
first problem that the applicants faced.
[108]
The second is that some of the statutes they rely on contain
transitional provisions and a range of adequate alternative remedies
available to address their complaints. Examples of such remedies are
for instance to be found in the following provisions:
108.1
Section 28 of NEMA empowers the Directors General of the Department
of Environmental Affairs, the Department of Mineral
Resources and a
provincial head of department to direct a person causing significant
pollution or degradation of the environment
to cease such conduct.
Section 28(12) of NEMA provides that any person may, after giving
notice, apply to a competent court for
an order directing the
Directors General or provincial heads of departments to take any of
the steps listed in s 28(4). There is
no evidence that the applicants
sought to make use of any of these remedial measures or to engage
meaningfully with the relevant
authorities about Tendele’s
alleged contraventions and what remedies could be applied.
108.2
The applicants complain that Tendele has never obtained municipal
permission to conduct mining or to use the land for mining
purposed.
However, section 75 of the KwaZulu-Natal PDA provides that developing
land contrary to a land use scheme or without prior
approval is an
offence. The remedy for the commission of such an offence is the
service by the municipality of a contravention
notice in terms of
section 80. The municipality is required to serve such notice if
there are reasonable grounds to suspect that
a person is guilty of
such an offence. If the contravention notice does not result in
compliance, the municipality would be required
in terms of section
81(2) to serve a prohibition order restraining the illegal activity.
The applicants have clearly not attempted
to compel the relevant
municipalities to invoke these provisions.
108.3
The applicants complain that Tendele has no written approval from
AMAFA in terms of section 35 of the KwaZulu-Natal Heritage
Act to
damage, alter, exhume or remove any traditional graves from their
original position. In terms of section 6 AMAFA is empowered
to
identify, conserve and protect the heritage resources of the
province. In terms of section 7(b)(iii) AMAFA is required to provide
for and facilitate community and stakeholder involvement in heritage
matters. AMAFA remains the body responsible in the province
for
issuing approvals in terms of section 35 relating to the alteration,
exhumation and removal of traditional graves. There is
no evidence
from the applicants’ side to show that they have engaged with
AMAFA about their remedial measures relating to
traditional graves.
The applicants complaints about traditional graves relates to
Tendele’s historical conduct in relation
thereto which as I
said Tendele has openly admitted to. As I have pointed out Tendele
now works closely with AMAFA and the affected
families to ensure that
any relocation of traditional graves take place in accordance with
the law.
[109]
All in all, I consider that the applicants have not made out a proper
case for an interdict. They seem to have adopted a “scatter
gun
approach” hoping to hit one target or another. As I said their
reliance now on the
Maledu
judgment is rather opportunistic
given the fact that none of the issues dealt with in that judgment
were either raised or dealt
with by the applicants in their papers or
in argument. It follows that the only appropriate order to be made in
this matter is
one dismissing the application. As far as the issue of
costs are concerned I see no reason why costs should not follow the
result.
Order
[110]
In the result I make the following order:
The
application is dismissed with costs, such costs are to be paid by the
applicants jointly and severally and are to include the
costs of two
(2) Counsel.
SEEGOBIN
J
COUNSEL
FOR THE APPLICANTS: .A Dickson SC with Ms Mazibuko (Instructed by
Youens Attorneys, c/o Hay Scott Attorneys)
COUNSEL
FOR THE RESPONDENTS: Mr Lazarus SC with Mr Ferreira (Instructed by
Malanscholes Attorneys)
COUNSEL
FOR AMICI: Mr D Sibiyi (Instructed by DMS Attorneys, c/o Shepstone &
Wylie Attorneys)
DATE
OF HEARING: 24 August 2018
DATE
OF JUDGMENT: 20 November2018
[1]
[2018] ZACC 41.
[2]
Constitution of the Republic of South Africa 1996, s 24 of which
reads as follows:
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.
[3]
Section 38 reads as follows:
Enforcement
of rights
– Anyone listed in this section has the right to
approach a competent court, alleging that a right in the Bill of
Rights
has been infringed or threatened, and the court may grant
appropriate relief, including a declaration of rights. The persons
who may approach a court are-
(a)
anyone acting in their own interest;
(b)
anyone acting on behalf of another person who cannot act in their
own name;
(c)
anyone acting as a member of, or in the interest of, a group or
class of persons;
(d)
anyone acting in the public interest; and
(e)
an association acting in the interest of its members.
[4]
National
Gambling Board v Premier, KwaZulu-Natal and others
[2001] ZACC 8
;
2002 (2) SA 715
(CC)
para 49, quoting
LTC
Harms in Joubert (ed)
The
Law of South Africa
1st
re-issue vol 11 para 314
.
[5]
Setlogelo
v Setlogelo
1914
AD 221.
[6]
In
L F
Boshoff Investments (Pty) Ltd v Cape Town Municipality; Cape Town
Municiaplity v L F Boshoff Investments (Pty) LTd
1969 (2) SA 256
(C) at
267A-F.
[7]
Prest
The
Law and Practice of Interdicts
at
50 – 51.
[8]
2017 SA 86
(ECG) paras 97 – 101.
[9]
Minister
of Health and others v Treatment Action Campaign and others (No. 2)
[2002] ZACC 15
;
2002 (5) SA 721
(CC)
para 129.
[10]
Modderfontein
Squatters, Greater Benoni City Council v Modderklop Boerdery (Pty)
Ltd (Agri SA and Legal Resources Center, Amici
Curiae); President of
the Republic of South Africa and others v Modderklop Boerdery (Pty)
Ltd (Agri SA and Legal Resources Centre,
Amici Curiae)
2004 (6) SA 40
(SCA) at
para 39.
[11]
Annexure TCM5 to the answering affidavit at 250.
[12]
Annexure TCM6 to the answering affidavit at 263.
[13]
Annexure TCM7 to the answering affidavit at 275.
[14]
Annexure TCM8 to the answering affidavit at 280.
[15]
Section 2 of the MPRDA provides that the objects of the MPRDA are to
–
(a)
recognise the internationally accepted right of the State to
exercise sovereignty over all the mineral and petroleum resources
within the Republic;
(b)
give effect to the principle of the State’s custodianship of
the nation’s mineral and petroleum resources;
(c)
promote equitable access to the nation’s mineral and petroleum
resources to all the people of South Africa;
(d)
substantially and meaningfully expand opportunities for historically
disadvantaged persons, including women and communities,
to enter
into and actively participate in the mineral and petroleum
industries and to benefit from the exploitation of the nation’s
mineral and petroleum resources;
(e)
promote economic growth and mineral and petroleum resources
development in the Republic, particularly development of downstream
industries through provision of feedstock, and development of mining
and petroleum inputs industries;
(f)
promote employment and advance the social and economic welfare of
all South Africans;
(g)
provide for security of tenure in respect of prospecting,
exploration, mining and production operations;
(h)
give effect to section 24 of the Constitution by ensuring that the
nation’s mineral and petroleum resources are developed
in an
orderly and ecologically sustainable manner while promoting
justifiable social and economic development; and
(i)
ensure that holders of mining and production rights contribute
towards the socio-economic development of the arears in which
they
are operating.
[16]
Section 22 provides as follows:
(1)
Any person who wishes to apply to the Minister for a mining right
must lodge the application –
(a)
At the office of the Regional Manager in whose region the land is
situated;
(b)
In the prescribed manner; and
(c)
Together with the prescribed non-refundable application fee.
(2)
The Regional Manager must accept an application for a mining right
if –
(a)
The requirements contemplated in subsection (1) are meant; and
(b)
No other person holds a prospecting right, mining right, mining
permit or retention permit for the same mineral and land.
(3)
If the application does not comply with the requirements of this
section, the Regional Manager must notify the applicant in
writing
of that fact within 14 days of the receipt of the application and
return the application to the applicant.
(4)
If the Regional Manager accepts the application, the Regional
Manager must, within 14 days from the date of acceptance, notify
the
applicant in writing –
(a)
To conduct an environmental impact assessment and submit an
environmental management programme for approval in terms of section
39, and
(b)
To notify and consult with interested and affected parties within
180 days from the date of the notice.
(5)
The Minister may by notice in the Gazette invite applications for
mining rights in respect of any land, and may specify in
such notice
the period within which any application may be lodged and the terms
and conditions subject to which such rights may
be granted.
[17]
Section 38(1) provided as follows:
Integrated
environmental management and responsibility to remedy
(1) The
holder of a reconnaissance permission, prospecting right, mining
right, mining permit or retention permit –
(a)
must at all times give effect to the general objectives of
integrated environmental management laid down in Chapter 5 of the
National environmental Management Act, 1998 (Act No. 107 of 1998);
(b)
must consider, investigate, assess and communicate the impact of his
or her prospecting or mining on the environment as contemplated
in
section 24 (7) of the National Environmental Management Act, 1998
(Act No. 107 of 1998);
(c)
must manage all environmental impacts –
(i)
in accordance with his or her environmental management plan or
approved environmental management programme, where appropriate;
and
(ii)
as an integral part of the reconnaissance, prospecting or mining
operation, unless the Minister directs otherwise;
(d)
must as far as it is reasonably practicable, rehabilitate the
environment affected by the prospecting or mining operations
to its
natural or predetermined state or to a land use which conforms to
the generally accepted principle of sustainable development;
and
(e)
is responsible for any environmental damage, pollution or ecological
degradation as a result of his or her reconnaissance
prospecting or
mining operations and which may occur inside and outside the
boundaries of the area to which such right, permit
or permission
relates.
[18]
The preamble to the NEMA Amendment Act, 2008 reads as follows:
To
amend the
National Environmental Management Act, 1998
, so as to
insert certain definitions and to substitute others; to further
regulate environmental authorisations; to empower
the Minister
of Minerals and Energy to implement environmental matters in terms
of the
National Environmental Management Act, 1998
, in so far as it
relates to prospecting, mining, exploration, production or related
activities on a prospecting, mining, exploration
or production area;
to align environmental requirements in the
Mineral and Petroleum
Resources Development Act, 2002
, with the
National Environmental
Management Act, 1998
, by providing for the use of one environmental
system and by providing for environmental management programmes,
consultation
with State departments, exemptions from certain
provisions of the
National Environmental Management Act, 1998
,
financial provision for the remediation of environmental damage, the
management of residue stockpiles and residue deposits,
the
recovering of cost in the event of urgent remedial measures and the
issuing of closing certificates as it relates to the
conditions of
the environmental authorisation; and to effect certain textual
alterations; and to provide for matters connected
therewith.
[19]
Natal Joint Municipal
Pension Fund v Endumeni Municipality
2012
(4) SA 593
(SCA) which was quoted and further elucidated in
Bothma
– Batho Transport (EDMS) Bpk v S Bothma en Seun Transport
(EDMS) Bpk
2014
(2) SA 494
(SCA) paras 18 – 12.
[20]
Minister of Public
Works v Haffejee NO
[1996] ZASCA 17
;
1996
(3) SA 745
(A) at 752A-B.
[21]
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.
[22]
‘24L.
Alignment
of environmental authorisations
–
(1)
A competent authority empowered under Chapter 5 to issue an
environmental authorisation and any other authority empowered
under
a specific environmental management Act may agree to issue an
intergrated environmental authorisation.
(2)
An intergrated environmental authorisation contemplated in
subsection (1) may be issued only if –
(a)
the relevant provisions of this Act and the other law or specific
environmental management Act have been complied with; and
(b)
the environmental authorisation specifies the -
(i)
provisions in terms of which it has been issued; and
(ii)
relevant authority or authorities that have issued it.
(3)
A competent authority empowered under Chapter 5 to issue an
environmental authorisation in respect of a listed activity or
specified activity may regard such authorisation as a sufficient
basis for the granting or refusing of an authorisation, a permit
or
a licence under a specific environmental management Act if that
specific environmental management Act is also administered
by that
competent authority.”
(repeat)
[23]
2012 (4) SA 181
(CC) paras 34 and 40 – 51.
[24]
2010 (6) SA 182
(CC) paras 49 – 57.
[25]
Per Jafta J, para 57.
[26]
2013 (4) BCLR 467 (KZN).
[27]
Sections 38 – 49 which deal with the development of land
situated outside the area of a scheme.
[28]
Section 39(1).
[29]
Section 40(1) and (2).
[30]
Section 41.
[31]
Section 42.
[32]
Section 43(1).
[33]
Section 49(1).
[34]
Oxford
Dictionary of English
,
3ed, Oxford University Press.
[35]
In terms of section 1 of the MPRDA, the word “processing”,
in relation to any mineral means the winning, extracting,
concentrating, refining, calcining, classifying, crushing,
screening, washing, reduction, smelting or gasification thereof.
[36]
Section 1 of the Waste Act.
[37]
National Environment Management: Waste Act, 2008 (Act No 59 of 2008)
Regulations, GN R921,
GG
37089, dated 29 November
2013.