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[2015] ZAGPPHC 584
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Aquarius Platinum (SA) Pty Ltd v Minister of Water And Sanitation and Others (75622/2014) [2015] ZAGPPHC 584 (27 July 2015)
HIGH
COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO: 75622/2014
DATE:
27 MAY 2015
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
In
the matter between:
AQUARIUS
PLATINUM (SA) PTY
LTD
...............................................................................
Applicant
And
MINISTER
OF WATER AND
SANITATION
...........................................................
First
Respondent
DIRECTOR
OF WATER-GENERAL:
DEPARTMENT
OF WATER AND
SANITATION
...............................................
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
JUDGMENT
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 Kroondai 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 necessary 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 (he 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 Bili 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) wouid 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(1 A) was inserted into
NEMiWA, 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(1 B) 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
(sec)
and its associated regulations
will be implemented with effect from
8
December
201Government 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 Parte Minister of Safety and Security;
in re S v
Walters
[1]
that the President had no option, once the Bill had been passed by
Pariiament 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 (aw, 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(1 B) - 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 site
demarcated 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 38B 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 38B of the MPRDA would ensure
the continued validity of ad 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 NEMAA/A, 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 law 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 wiii 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 ail the above reasons, the order
referred to in para [1] was made.
TM
Margoka 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 Schoies 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]
2Q02 (7) BCLR 663 (CC) para 69
[2]
[2000] ZACC I; 2000(2) SA 674 <CC)
[2000] ZACC 1
; ;
2000 (3) BCLR 241
(CC)