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[2015] ZAGPPHC 587
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Aquarius Platinum (SA) Pty Ltd v Minister of Water And Sanitation and Others (75622/2014) [2015] ZAGPPHC 587 (27 May 2015)
HIGH
COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE NO: 75622/2014
NOT
REPORTABLE
In
the matter between:
NOT
OF INTEREST TO OTHER JUDGES
AQUAR
I
US
PLATINUM
(SA)
PTY
LTD
Applicant
and
MINISTER
OF WATER
AND
SANITATION
First Respondent
DIRECTOR
OF WATER-GENERAL:
DEPARTMENT
OF WATER
AND
SAN
I
TATION
Second Respondent
MINISTER
OF
MINERAL
RESOURCES
Third Respondent
PRESIDENT
OF THE
REPUBLIC
OF
SOUTH
AFRICA
Fourth Respondent
MINISTER
OF
ENVIRONMENTAL
AFFAIRS
Fifth Respondent
DEPARTMENT
OF ENVIRONMENTAL
AFFAIRS
Sixth Respondent
J
U D G M E N T
MAKGOKA,
J:
[1]
On 22 May 2015 I made the following order:
1.
The publication by the fourth respondent
(the President) of
the National
Environmental Laws Amendment Act 25 of 2014 in the Government Gazette
37713 dated 2 June 2014, without
promulgating the regulations for the
implementation of the amendments envisaged in the above-mentioned
Act, is reviewed and set
aside;
2.
The relief sought by the applicant in prayer 4 of the amended notice
of motion is dismissed;
3.
The fifth and sixth respondents are jointly and severally ordered to
pay 60% of the applicant's costs.
[2]
The applicant (Aquarius) seeks, in the main, to review and set aside
a decision of the second respondent to refuse Aquarius'
application
for a water use licence under the
National Water Act 36 of 1998
. At
the hearing of the matter, Aquarius, the first and second
respondents, agreed that the relief sought by Aquarius against the
first and second respondents be postponed. However, the Minister of
EA and the department, opposed the postponement, mainly on
the ground
that the postponement would result in unnecessary piece-meal
adjudication of the matter. After hearing argument, I postponed
that
part of the application
sine
die,
on the terms more
fully set out in the order marked 'X'.
[3]
I also granted Aquarius leave for a further amendment to its notice
of motion, the details of which are not relevant to the
issue I have
to decide in this judgment. It suffices to mention that I was
satisfied that the amendment will allow for the proper
facilitation
of a hearing of the dispute between Aquarius, the first and second
applicants.
[4]
What remains is the relief which Aquarius seeks against the fourth
respondent (the President). Aquarius seeks to review and
set aside
the decision of the President to publish the National Environmental
Laws Amendment Act 25 of 2014 (NEMLAA) on 2 June
2014 without the
regulations envisaged in that Act. The publication brought into
operation sections 19, 21, 22, 23, 24 and 25 of
the NEMLAA.
[5]
The applicant seeks such relief because NEMLAA amends the National
Environmental Management: Waste Act 59 of 2008 (NEM: WA),
which in
turn, would be applicable to residues of mining operations such as
the tailings into a storage facility at Kroondal mine,
operated by
the applicant. Aquarius' case against the President is therefore that
the proclamation into law of NEMLAA has resulted
in legal
uncertainty, and NEMLAA, is to that extent, invalid and of no force.
The relief sought therefore falls within a narrow
compass.
[6]
Alternatively, the applicant seeks a declaratory order that the third
respondent, the Minister of Mineral Resources (Minister
of MR) is
obliged to exempt the applicant from the licensing provisions of
NEM:WA, and an order that the Minister of MR so exempt
the applicant
from the provisions of NEM: WA. Further alternatively, the
application seeks a declaratory order that the Minister
of MR is
empowered to exempt the applicant from the licensing provisions of
NEM: WA, and order for the Minister of MR to consider
whether to
exempt the applicant from such provisions. No relief is sought
against the fifth and sixth respondents - respectively
the Minister
of Environmental Affairs (Minister of EA) and her department. The two
respondents were not originally cited. They
were joined in the
proceedings at their own application, ostensibly because of an
interest they have in the issues raised by the
application.
[7]
The President is not opposing the relief sought against him. However,
the Minister of EA and her department, oppose the relief
sought by
Aquarius on the basis that the legislation implicated in the relief
sought by Aquarius is administered by them, and would
impact on how
that legislation would be implemented. In written submissions on
their behalf, the following issues are said to be
of concern to the
Minister of EA and her department: the binding nature of the
application of the licensing provisions; the validity
of such
provisions, and the scope of the application
of
the licensing provisions of the legislation and the subordinate
legislation.
[8]
A brief factual background is this. Aquarius conducts a mining
operation in Kroondal in Northwest. The mine produces tailings
which
need to be deposited on tailings dams. It had become necessary for
Aquarius to develop new sites to deposit tailings since
its existing
tailing dams were reaching their capacity. During or about 2008, a
mined-out pit known as West-West Pit was identified
as a new tailings
storage facility. The legal process to obtain the necessa1y
legislative approvals was initiated. This included
an application for
water use license in terms of the National Water Act 36 of 1998
(NWA). This was submitted to the relevant officials
of the
predecessor department of the first respondent on 4 September 2012.
[9]
The first and second respondents have not approved Aquarius'
application in this regard. Because the application involving
Aquarius, the first and second respondents has been postponed, I need
not set out in any detail the nature of the dispute between
them.
Suffice it to say that the dispute concerns the efficacy of the
proposed measures to limit the pollution which may be caused
by the
deposition of tailings. The first and second respondents insist that
for that purpose, Aquarius must include a type C barrier
in the
West-West pit before its water license application is approved.
Aquarius, on the other hand, contends that the inclusion
of such a
barrier is not a legal requirement for issuing of a water license,
and further that the proposals and design it submitted
to limit
pollution are more effective that the installation of the barrier
insisted upon by the first and second respondents.
[10]
On 27 March 2013 Aquarius obtained environmental authorization in
terms of NEMA for listed activities provided for in NEMA
that will be
triggered by the implementation of the West-West pit project. On 11
June 2013 it obtained, from the Minister of MR,
consent to implement
the West-West pit project without a type C barrier, to include the
construction and operation of the project.
[11]
On 2 June 2014 the President published NEMLAA in terms of s 81 of the
Constitution of the Republic of South Africa, 1996 (the
Constitution)
in Government Gazette 37713. Section 81 provides that a Bill assented
to and signed by the President becomes an Act
of Parliament, must be
published promptly, and takes effect when published or on a date
determined in terms of the Act. Section
32 of NEMLAA provided for the
amendments to come into effect three months from date of publication
of the Act by the President
in the Gazette. The effective date was
therefore 2 September 2014.
[12]
It appears that the purpose of the amendments brought about by NEMLAA
was to rationalize the different and often contradicting
legislative
requirements relating to the environmental impacts of prospecting and
mining. I accept, and adopt, the following summary
by counsel for
Aquarius as to the overall intention of these amendments, in so far
as they are relevant to this application:
(a)
the provisions of the MPRDA which regulated the environmental impacts
and the management of the environmental impacts
of mining (including
the management of mine residues) would be removed from the MPRDA and
be governed under the provisions of NEMA;
(b)
although NEMA would apply to mining, the provisions of NEMA would be
implemented by the Department of Mineral Resources
(DMR) and the
power to grant environmental authorisations in respect of prospecting
and mining activities under NEMA will vest
in the Minister of MR;
(c)
the provisions of NEM:WA (which were, as made applicable to mining
but, as in the case of NEMA, the powers under NEM:WA
vesting in the
Minister of EA, would, as from the date when NEM:WA became applicable
to mining, vest in the Minister of MR.
[13]
Section 43A of NEMLAA was inserted into NEM:WA which provides that,
what is referred to as 'residue stockpiles and residue
deposits' must
be managed in the prescribed manner on a site demarcated for that
purpose in the environmental management plan or
environmental
management programme. The word 'prescribed' is defined in section 1
of NEM:WA as meaning '...prescribe by regulation
under this Act'. It
is common cause that the regulations envisaged in the newly-inserted
s 43A, which are required for the implementation
of its provisions,
had not been promulgated by 2 September 2014, the date on which
NEMLAA became effective.
[14]
The practical effect of the President publishing NEMLAA on 2 June
2014 to become effective on 2 September 2014, can be summarized
as
follows. First, in terms of s 18 thereof, NEM:WA became applicable to
mining (by deleting section 4(1)(b) of the latter Act.
Second, in
terms of s 21, s 43(1A) was inserted into NEM:WA, thereby making
Minister of MR the licensing authority where a waste
management
licence is required to authorize a waste management activity which is
related to mine residues.
[15]
Third, s 43(18) was inserted into NEM:WA which made the Minister of
MR responsible for the implementation of NEM:WA to the
extent it
relates to mining and mine residues. Fourth, the definition of
'residue stockpiles' and 'residue deposits' were inserted
into
section 1 of NEM:WA by s 18(b) of NEMLAA, which inserted the
definitions with effect from 2 September, 2014. However, these
definitions were deleted by section 1 (b) of the National
Environmental Management: Waste Amendment Act 26 of 2014 with effect
from 2 June 2014, that is, before their insertion became effective on
2 September 2014.
[16]
As a result of the non-promulgation of the regulations contemplated
in s 43A of NEMLAA by the date on which NEMLAA became effective,
the
Ministers of EA and of MR, were prompted to issue a long press
statement on 4 September 2014. The net effect of that statement
is
the following:
'NEMLA (sic) and its
associated regulations will be implemented with effect from 8
December 2014.'.... Government took a decision
that the 'One
Environmental System' will only be implemented from 8 December 2014,
when the whole suite of legislation and subordinate
legislation
necessary for the implementation of the One Environmental System will
be in effect.'
[17]
As it turned out, by 8 December 2014, the regulations for the
implementation of the amendments brought about by NEMLAA were
not in
place, despite the assurance of the two Ministers. As of the date of
hearing of this application, the regulations were yet
to be
promulgated.
[18]
That fact forms the basis of Aquarius' complaint. It contends that
the application of the amendments brought about by NEMLAA
without the
envisaged regulations has brought uncertainty for it and other stake
holders in the mining sector. On behalf of Aquarius,
it was contended
that although the President cannot veto legislation which has been
duly passed by Parliament, or block its implementation,
he had a duty
to ensure that the Act is capable of being implemented before
exercising the power granted to him by Parliament to
fix the date on
which such legislation will become operative. Counsel for Aquarius
argued that the manner in which s 32 of NEMLAA
was worded did, by
reference to s 81 of the Constitution, give the President a
discretion to determine the date upon which the
enactments would come
into operation.
[19]
The upshot of the argument on behalf of Aquarius is that the decision
of the President to publish NEMLAA at a stage where nothing
had been
done to formulate the regulations required under NEM:WA to regulate
mine residues, was not objectively rational having
regard to the
powers given to the President in ss 79 and 81 of the Constitution to
cause legislation to become effective. The President
should have
exercised the power in a responsible and considered manner, having
assessed the progress that had been made to promulgate
the related
regulations required to implement the amendments to various
legislation as a result of NEMLAA.
[20]
Counsel
for
the
Minister
of
EA
and
her
department,
submitted
that the
President
had
neither
a
discretionary
power
nor
a
power
delegated
to
him
by
Parliament as to whether or not to publish NEMLAA after he had
assented thereto. He was
in fact
constitutionally
obliged
or
compelled
to
publish the
Act
under
the circumstances.
Counsel
argued, with reference to
Ex
Parle Minister of Safety and Security:
In
re S
v Walter
[1]
that the President had no option, once
the Bill
had been passed
by
Parliament
and
assented
to
by
him,
he was
constitutionally
obliged
to
promptly
publish NEMLAA in terms of s 237 of the Constitution. The President
had
no
discretion
and no
decision to
take after assenting
and signing
the said Bill.
[21]
Relying on s 81 of the Constitution, counsel further submitted that
the only instance when the President could refer the Bill
back to
Parliament for reconsideration is if he has reservation about the
constitutionality of the Bill, which is not the case
in the present
matter. Other than that, so submitted counsel, the President had to
sign the Bill passed by parliament and publish
its coming into
effect.
[22]
The upshot of the above submissions cannot, in principle, be faulted.
But with respect to counsel, the legislative process
he refers to is
not in issue here. What is in issue is the decision of the President,
to publish the Act, and thus bringing the
Act into operation. This
occurred after the legislative process counsel refers to, had been
complied with. The legislative
process had therefore moved past
the stage of passing the Bill by Parliament and the President signing
it into law. There is no
challenge to that process. It is not
Aquarius' case that that the relevant Bill passed by Parliament and
signed into law by the
President is unconstitutional for want of
compliance with the legislative process, either in the passing of the
law or signature
thereof by the President. The complaint concerns the
final stage of that legislative process, namely the publication or
the proclamation
of the law for it to become
operative.
[23]
The
President's publication of an Act, and thus
bring it
into force,
constitutes
part of the
legislative scheme.
It must be
rational. It is
judicially
reviewable if it is not.
As
explained
by
the
Constitutional
Court
in
Pharmaceutical
Manufacturers Association
of
SA
and
Another:
In
re
Ex
Parte
President
of
the Republic
of
South
Africa and Others
[2]
para 79:
'[W]hen
he purported to exercise the power the President was neither making
the law, nor administering it. Parliament had made the
law, and the
Executive would administer it once it had been brought into force.
The power vested in the President thus lies between
the law-making
process and the administrative process. The exercise of that power
requires a political judgment as to when the
legislation should be
brought into force, a decision that is necessarily antecedent to the
implementation of the legislation which
comes into force only when
the power is exercised. In substance the exercise of the power is
closer to the legislative process
than the administrative process. If
regard is had to the nature and subject-matter of the power, and the
considerations referred
to above, it would be wrong to characterise
the President's decision to bring the law into operation as
administrative action within
the meaning of item 23(2)(b) of the
Sixth Schedule of the Constitution. It was, however, the exercise of
public power which had
to be carried out lawfully and consistently
with the provisions of the Constitution insofar as they may be
applicable to the exercise
of such power.' (Footnote omitted.)
[24]
In the present case, the results of premature proclamation of NEMLAA
without the necessary regulations, which the Act itself
envisaged,
are glaring. NEMLAA amended a number of statutes. However, for the
present purposes, it suffices to state that it made
NEM:WA applicable
to mining by deleting section 4(1)(b). It also inserted into NEM:WA
the following:
(a) s 43(1A) -
designating the Minister of MR the Licensing authority where a waste
management activity is related to prospecting
or mining;
(b) s 43(18) -
designating the Minister of MR to be responsible for the
implementation of the provisions of NEM:WA that relate
to prospecting
and mining;
(c) s 43A which
provides that, what is referred to as 'residue stockpiles and residue
deposits' must be managed in the 'prescribed
manner' on a
sitedemarcated for that purpose in the environmental
management plan or environmental management programme;
and
(d) the definitions
of 'residue stockpiles' and 'residue deposits' into section 1 of
NEM:WA.
[25]
Aquarius complains about the alleged legislative and regulatory
vacuum caused by the premature promulgation of NEMLAA. For
example,
although NEMLAA inserted definitions of 'residue stockpiles' and
'residue deposits' into s 1 of NEM:WA with effect from
2 September
2014, those very same definitions were again deleted, purportedly
with effect from 2 June 2014, by section 1(b) of
the amended NEM:WA.
[26]
Quite apart from the absurdity inherent in the fact that the
definitions were deleted before they were inserted into NEM:WA,
it
resulted in a vacuum with regard to what 'residue stockpiles and
residue deposits' are and how they to be managed in terms of
s 43A of
NEM:WA. What is more, at the same time, the similar provision in
section 42 of the MPRDA has been repealed, albeit regulation
73 of
the MPRDA regulations remains in place. The result is that there is
legislation vacuum with regards to the management of
residue
stockpiles and residue deposits.
[27]
The other consideration is the uncertainty posed to the holders of
environmental management programmes. The President has failed
to
cause the provisions of the MPRDAA, which inserts section 388 into
the MPRDA, to come into effect, at least on the same day
as when the
repeal of the provisions of the MPRDA governing environmental
management programmes comes into effect It was intended
that section
388 of the MPRDA would ensure the continued validity of all EMPs
approved under the MPRDA as if they were environmental
authorisations
approved under NEMA.
[28]
If the repeal of section 14(2) of NEMAA had the result that all the
provisions of the MPRDA relating to environmental management
programmes were deleted with effect from 2 September 2014 while the
deeming provisions of section 38B have not come into effect,
there is
a legislative vacuum as to how holders of prospecting or mining
rights must implement the provisions of their environmental
management programmes since the provisions of the MPRDA that require
such holders to implement the provisions of the MPRDA have
been
deleted while the amended provisions of NEMA with regard to
environmental authorisations do not apply to those holders.
[29]
The above simply demonstrate the irrationality of the President's
decision to put into effect the amendments without the proper
regulations for implementation. To that extent the proclamation is
invalid and should be set aside.
[30]
I turn now to Aquarius' prayer for exemption from the licensing
provisions of NEM:WA. Aquarius seeks an order that the licensing
provisions of NEM:WA, as amended by NEMLA do not apply to its
West-West pit project. Alternatively, if it applies, there must be
an
order that the Minister of MR is authorised to exempt the
implementation and operation of the West-West pit project from the
provisions of the NEM:WA, and the Minister is obliged to so exempt
the applicant within 10 days of the service of the court order
on
him. Alternatively, Aquarius seeks an order in terms of which the
Minister of MR is ordered to consider and make a decision
in respect
of its application for exemption from the licensing provisions of
NEM:WA within 10 days of the service of the order
on him.
[31]
What Aquarius seeks, in essence, is a declaratory that its tailings
storage facility is not and will not at any stage in future
be
subject to the existing or future licensing provisions of the Waste
Act 59 of 2008 or alternatively that Aquarius' tailing storage
facility is entitled to be exempted by the Minister of MR from the
licensing provisions of the Waste Act.
[32]
The power of exemption has been entrusted to the executive branch of
government. It is not for a court to prescribe to the
executive how
that power has to be exercised by the executive. As a result I would
give deference to the executive in this regard,
lest I offend the
doctrine of separation of powers by assuming the power so clearly
entrusted to the executive. In any event, it
is by no means clear
that it is the Minister of MR who has to exempt as sought by
Aquarius. There is a debatable case that that
power vests with the
Minister of EA. But on any consideration, I do not think that the
relief sought by Aquarius in this regard
can be competently granted
by this court. There might well be instances where by way of
mandamus
,
the executive could well be compelled to do what it is
enjoined by raw to do. This is not one of those. It is not Aquarius'
case
that any of the concerned Ministers has failed or refused to
perform their duties. Aquarius' case in this regard falls to fail.
[33]
I must finally determine the reach of the order of invalidity.
Aquarius has sought a narrowly tailored relief of constitutional
invalidity of NEMLAA so that the publication of NEMLAA be reviewed
and set aside only insofar as NEMLAA made NEM:WA applicable
to its
West-West pit project. I do not think it is desirable to grant such
an order in the circumstances of the case. The complication
is that
the President has not participated in these proceedings, nor has he
given any indication as to how he intends to redress
the vacuum
created by the premature publication.
[34]
As acknowledged by counsel for Aquarius, the impact of the conundrum
created by the publication of NEMLAA without the regulations
has a
far wider impact than simply on Aquarius. Many other stakeholders
will be affected by the amendments to various laws affected
by the
amendments. It would therefore be convenient that the impact of the
amendments should be dealt with once and for all. As
the order of
invalidity I am about to make must first be confirmed by the
Constitutional Court, it would be desirable for that
court to finally
and effectively dispose of the matter as a whole.
[35]
There remains the issue of costs. Aquarius has been successful in its
case against the President. Counsel for the Minister
of EA and her
department effectively argued for the dismissal of the relief against
the president, who, in my view, wisely did
not oppose such relief.
Much time was spent during argument on the case against the
President, which Aquarius eventually succeeded
on. That should be
reflected in the order of costs. I think that a fair order would be
that the Minister of EA and her department
should be liable to 60% of
Aquarius' costs.
[36]
In terms of s172 of the Constitution, the Registrar of this Court
would be requested to transmit this judgment to the Constitutional
Court for it to decide whether to confirm the order of invalidity in
the order I made.
[37]
For all the above reasons, the order referred to in para [1] was
made.
_______________________
TM
Makgoka
Judge
of the High Court
Date
of hearing:
27 January 2015
Judgment
delivered:
27 May 2015
Appearances:
For
the Applicant:
Adv.L. Bekker
Instructed
by:
Malan Scholes Incorporated, Johannesburg
Klagsbrun Edelstein
Bosman De Vries, Pretoria
For
the First and Second Respondents: Adv.
K. Moroka SC
Adv. H. Rajah
Instructed
by:
State Attorney, Pretoria
No
appearance for Third
And
Fourth Respondents
For
the Fifth and Sixth Respondents:
Adv.M. Oosthuizen SC
Adv.
M. Molea
Instructed
by:
State Attorney, Pretoria
[1]
[2002] ZACC 6
;
2002 (7) BCLR 663
(CC) para 69
[2]
[2000] ZACC I
[2000] ZACC 1
; ;
2000 (2) SA 674
(CC);
2000 (3) BCL R 241
(CC)