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2024
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[2024] ZAMPMBHC 48
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Mining and Environmental Justice Community of South Africa and Others v MEC for Agriculture, Rural Development, Land and Environmental Affairs and Others (1322/2021) [2024] ZAMPMBHC 48 (18 July 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
MPUMALANGA
DIVISION, MBOMBELA (MAIN SEAT)
Case
NO:
1322/2021
(1)
REPORTABLE:
YES
/ NO
(2)
OF INTEREST TO OTHER JUDGES:
YES
/ NO
(3)
REVISED:
YES
/ NO
DATE:
18 July 2024
SIGNATURE
In
the matter between:
MINING
AND ENVIRONMENTAL JUSTICE COMMUNITY
1
st
Applicant
OF
SOUTH AFRICA
GROUNDWORK
2
nd
Applicant
BIRDLIFE
SOUTH
AFRICA
3
rd
Applicant
ENDANGERED
WILDLIFE TRUST
4
th
Applicant
FEDERATION
FOR A SUSTAINABLE ENVIRONMENT
5
th
Applicant
ASSOCIATION
FOR WATER AND RURAL DEVELOPMENT
6
th
Applicant
BENCH
MARKS FOUNDATION
7
th
Applicant
and
MEC
FOR AGRICULTURE, RURAL DEVELOPMENT
,
1
st
Respondent
LAND
AND ENVIRONMENTAL AFFAIRS
UTHAKA
ENERGY (PTY)
LTD
2
nd
Respondent
MINISTER
OF FORESTRY, FISHERIES AND
THE
ENVIRONMENT
3
rd
Respondent
MINISTER
OF MINERAL RESOURCES AND ENERGY
4
th
Respondent
THE
MABOLA PROTECTED ENVIRONMENT LANDOWNERS
5
th
Respondent
ASSOCIATION
THE
VOICE COMMUNITY REPRESENTATIVE COUNCIL
6
th
Respondent
THE
OCCUPIERS OF THE EXCLUDED PROPERTIES
7
th
Respondent
ORDER
1.
The decision of the first respondent on 15 January 2021 to exclude
four properties from the Mabola Protected
Environment is reviewed and
set aside.
2.
The second respondent is to pay the costs.
3.
Costs of the late filing of the second respondent’s
answering affidavit are to be paid by the second respondent on a
party
and party scale.
JUDGMENT
MOLELEKI
AJ
Introduction
[1]
The applicants seek the review and setting aside of the first
respondent’s decision to exclude
four properties from the
Mabola Protected Environment, thus permitting coal-mining activities
in the protected wetlands area. The
application is brought in terms
of Rule 53 of the Uniform Rules of court.
[2]
The applicants are a coalition of seven non-profit public interest
organisations who are working
together to ensure the continued
conservation of the Mabola Protected Environment.
[3]
The first respondent is the Member of the Executive Council for
Agriculture, Rural Development
and Environmental Affairs, Mpumalanga
(MEC).
[4]
The second respondent holds the mining rights to the mine, Yzerman,
which has been attempting
to establish and start a mining process in
the area which fall within the Mabola Protected Environment. This
area comprises of
wetlands and other Eco sensitive areas.
[5]
Only the second respondent opposes the relief sought by the
applicants to review and set aside
the first respondent’s
exclusion decision.
Protected Environments
[6]
The Mabola Protected Environment was declared a protected environment
in terms of section 28 of
the National Environmental Management:
Protected Areas Act
[1]
, (NEMPAA)
on 22 January 2014 and it is an important biodiversity and water
source area.
[7]
Protected environments are declared to control the cumulative impact
on natural features, biodiversity
and the production of environmental
goods and services. Biodiversity is essential for the processes that
support all life on earth,
including humans. A protected environment
supports the persistence of biodiversity within the broader landscape
and safeguards
the long-term provision of: (a) environmental goods
produced by ecosystems including food, water, fuel and timber; (b)
and environmental
services including clean water supply, air
purification, soil formation, carbon shortage, flood attenuation and
pollination.
[8]
The National Environmental Management: Protected Areas Act
[2]
,
was enacted to provide for the protection and conservation of
ecologically viable areas representative of South Africa’s
biological diversity and its natural landscapes.
[9]
The ecosystems of Mpumalanga are characterised by high levels of both
plant and animal diversity
and a significant number of unique species
that are not known to occur anywhere else. Although Mpumalanga
occupies only 7% of South
Africa’s land surface, it holds 21%
of its plant species with nearly a quarter of its vegetation types
nationally gazetted
as threatened. Its grassland forms part of the
most biodiverse biome in South Africa and contains many unique, rare
and threatened
species and ecosystems. The Province accounts for a
high proportion of South Africa’s strategic water source areas.
It, therefore,
plays a critical role in providing regional and
national water security.
[10]
The Mabola Protected Environment falls within the Pixley ka Seme
Local Municipality and is situated on Mpumalanga’
southern
boundary with Kwa Zulu Natal. As stated, it was declared a protected
environment on 22 January 2014. The area comprising
the Mabola
Protected Environment was so determined, through scientific research
and recognised in the policies of a number of governmental
departments.
[11]
The purpose of the declaration was to: (a) enable landowners to take
collective action to conserve biodiversity;
(b) protect the area,
which is sensitive to development due to its biological diversity,
natural characteristics, scenic and landscape
value and the provision
of environmental goods and services; (c) protect a specific
ecosystem; and (d) ensure that the use of the
natural resources in
the area is sustainable.
[12]
Mabola contributes to the overall water supply of the country.
The decision under
review
[13]
On
15 January 2021, the first respondent, the MEC for Agriculture, Rural
Development, Land and Environmental Affairs, excluded four
properties
from the Mabola protected Environment, namely, (a) portion 1 of
Kromhoek 93HT; (b) remainder of Kromhoek 93HT; (c) Goedgevonden
95HT;
and (d) remainder of Yzerman 96HT (collectively, the excluded
properties).
[14]
The MEC’s reason for the exclusion of the properties was to
enable mining activity. This, according
to the MEC, would ensure that
natural resources are used for the socio-economic benefit of the
community of the Pixley ka Seme
Local Municipality wherein Mabola is
located. Secondly that it would promote the economic growth of the
community and would promote
the co-existence of mining activities and
conservation within the area on the properties.
[15] It
is on the excluded properties that the second respondent, Uthaka
Energy (Pty) Ltd intends to construct
an underground coal mine.
[16] It
is common cause between the parties in terms of the joint minute that
the issues for determination are
as follows:
1.
Whether the first respondent’s
decision to exclude the four properties from the Mabola Protected
Environment should be set
aside, on any of the eight grounds of
review, on the basis that it was either unlawful, irrational or
unreasonable;
2.
Whether paragraphs 14, 15, 17, 20, 44, 57, 114,
and 178 of the second respondent’s answering affidavit are
irrelevant, vexatious
and/or scandalous and should be struck out; and
3.
Whether the second respondent should be ordered to
pay punitive costs
for the late filing of its answering
affidavit.
The grounds of review
[17]
The grounds for the review of the MEC’s
decision are as follows;
17.1
The decision is an unlawful circumvention
of:
1.
Section
48 of NEMPAA and a usurpation of the powers of the Minister of
Environment, Forestry and Fisheries (the Environment Minister)
and
the Minister of Mineral Resources and Energy (the Minerals Minister).
Commercial mining in a protected environment is prohibited
unless
permission has been granted by both the Environment and Minerals
Ministers in terms of section 48(1)(b) of the NEMPAA. When
applying
the section, the Minister of Environment is required to consider the
interests of local communities and the environmental
principles
referred to in section 2 of the National Environmental Management
Act
[3]
, (NEMA).
2.
The
judgment of the Gauteng Division of the High Court of 8 November 2018
(The MEJCON Judgment) that sets aside the decision of
the
Environmental and Minerals Ministers to grant written permission for
second respondent to conduct commercial mining in the
Mabola
Protected Environment in terms of section 48(1)(b) of the NEMPAA. The
court had ordered that the decision be deferred until
after the
decision of the statutory appeal against the approval of second
respondent’s environmental programme to the Water
Tribunal.
According the applicants, the exclusion decision falls to be reviewed
and set aside on the grounds that it was taken
for an ulterior
purpose/motive, in bad faith and constitutes arbitrary and capricious
decision-making.
Mining
Environmental Justice Community Network of South Africa and Others v
Minister of Environmental Affairs and Others
[4]
3.
The MEC’ decision does not take into consideration the
available science, policy and
law regarding the protection of the
Mabola Protected Environment.
4.
The MEC was under an obligation to and did
not consider the precautionary principle and the vulnerable
ecosystems principle. Section
2(4)(a)(vii) of NEMA sets out the
precautionary principle which provides that sustainable development
requires the consideration
of all relevant factors including that a
risk averse and cautious approach is applied, which takes into
account the limits of current
knowledge about the consequences of
decisions and actions.
5.
The MEC ignored the Environment Minister’
advice and failed to adhere to the principles of co-operative
governance.
6.
The MEC was biased or reasonably suspected
of bias.
7.
The MEC failed to consider the impacts of mining.
8.
The MEC did not consider South Africa’s
International responsibilities.
[18]
The essence of the applicants’ case is that the proposed coal
mine will have long-term negative environmental
impact on the
biodiversity, water resources and the essential water services that
the area provides and feeds into. Importantly,
that the underground
mining has been identified as a land use that will compromise the
biodiversity objective of the excluded properties.
The applicants
submitted that the excluded properties are irreplaceable critical
biodiversity areas from an aquatic and terrestrial
perspective; fall
within a high-water yield area that has been classified as a priority
river and wetland ecosystem; fall within
a strategic water source
area and are considered a strategic national asset that is vital for
national water and economic security.
[19]
The applicants aver further that, the strategic importance of Mabola
as a protected environment has intensified
since its declaration due
to South Africa’s water scarcity and the imperative to
facilitate South Africa’s resilience
to climate change. The
applicants contend therefore that, the purpose of the declaration of
the Mabola Protected Environment was
and still is sound and
reasonable in science, policy and law.
[20]
The second respondent on the other hand contends that the MEC’s
decision is not in terms of nor does
it violate section 48 of NEMPAA.
The MEC relied on section 29 of the NEMPAA which does not require
consultation with the Ministers,
as is the case with section 48. It
is thus, the prerogative of the MEC as to which areas are excluded
from a protected environment.
Therefore, according to the second
respondent, the applicants incorrectly interpreted section 48 by
submitting that the MEC requires
the approval of the Ministers.
[21]
The basis for the second respondent’s opposition is
that:
1.
The first ground of review that the MEC circumvented
section 48 of
NEMPAA is a point of law and not a ground for review. A review is
limited to determining whether the MEC’ decision
was lawful,
informed and reasonable and it does not have to be right. The MEC was
advised by an advisory panel and all the submissions
were considered.
The second respondent submits that the applicable section in this
instance is section 29(2)(b) of NEMPAA which
authorises the MEC to
withdraw the declaration issued under section 28, of an area as a
protected environment or as part of an
existing protected
environment; exclude any part of a protected environment from the
area. The MEC, therefore, gave full explanation
and rationale for his
decision.
2.
The second ground for review that the MEC’s
decision is a
circumvention of the NEMPAA judgment (MEJCON Judgment). The second
respondent submits as follows: Although the court
had reviewed and
set aside the decision of the Environment Minister granting the
second respondent written permission to conduct
commercial mining in
the Mabola Protected Environment in terms of section 48(1)(b) of
NEMPAA, the second respondent’s application
for written
permission was remitted to the Environment and Minerals Ministers for
reconsideration. It was contemplated and provided
for in the court
orders that the MEC may apply section 29, in which case, the
Minister’s permission in terms of section 48
would not be
required. Therefore, it is not a circumvention of a court order but
was rather envisaged.
3.
The third ground that the MEC did not take
into consideration the
available science, policy and law regarding the protection of the
Mabola Protected Environment – it
is averred that what is
presented as science, policy and law is the applicant’s
interpretation thereof. The scientific evidence
has already been
dealt with by the Water Tribunal where expert evidence was heard.
Science does not support the applicants’
submissions. South
Africa as a mining country, has developed mitigating factors to deal
with any possible contamination of water
sources.
4.
The fourth ground is that the MEC failed to
consider the
precautionary principle and the vulnerable ecosystems principle. In
this respect the second respondent contended that
section
2(4)(a)(vii) of NEMA provides for a risk-averse, cautionary approach
and does not impose a ban on mining. Further that,
the MEC in his
reasons specifically refers to the precautionary principle and
applied it and found a way to allow the mine to proceed
in the
interests of social development.
5.
The fifth ground- The MEC ignored the Environment
Minister’s
advice and failed to adhere to the principles of cooperative
governance – the second respondent avers that
section 29 of
NEMPAA does not require the MEC to obtain permission from other
Ministers to decide. However, the MEC consulted with
all relevant
inter-government agencies.
6.
The sixth ground – the MEC was biased
or reasonably suspected
of bias- The second respondent submits that there is nothing that
indicates bias. To the contrary, the
MEC considered the
socio-economic impacts of his decision, environmental concerns as
well as the plight of the poor, whilst promoting
environmental
protection and sustainability.
7.
The seventh ground – the MEC failed
to consider the impacts of
mining- the contention of the second respondent is that the MEC had
section 24 of the Constitution in
mind when he made the decision
which provides for economic and social development. There will
therefore be social economic benefit
to the communities including
jobs, direct investment, upliftment of the community through
education and training.
8.
The eight ground – the MEC failed to
consider South Africa’s
International responsibilities – the second respondent contends
that no international responsibilities
are violated by moving the
four properties out of the Mabola Protected Environment.
Legal
Framework
[22]
Section 24 of the Constitution provides that everyone has the right
to an environment that is not harmful
to their health or well-being
and to have the environment protected for the benefit of present and
future generations through reasonable
legislative and other measures
that prevent pollution and ecological degradation, promote
conservation and secure ecologically
sustainable development and use
of natural resources while promoting justifiable economic and social
development.
[23]
There is legislation in place to give effect to the environmental
provision as contained in section 24 of
the Constitution. These are:
(a) The National Environmental Management Act
[5]
(NEMA, (b) The National Water Act 36 of 1998 (The national Water Act;
(c) The National Environmental Management: Protected Areas
Act
[6]
(NEMPAA) and (d) The National Environmental Management: Biodiversity
Act
[7]
(NEMBA).
[24]
Section 2 of NEMA provides for a set of principles to be applied by
organs of State when taking decisions
which may significantly affect
the environment. It also makes provision for relevant considerations
to be borne in mind when sustainable
development is considered as
part of integrated environmental management. Section 2(4)(r) of NEMA
provides that sensitive vulnerable,
high dynamic or stressed
ecosystems, such as … wetlands and similar systems require
specific attention in management and
planning procedures, especially
where they are subject to significant human resource usage and
development pressure.
[25]
NEMBA provides for the management and conservation of the country’s
biodiversity within the framework
of NEMA.
[26]
The objectives of NEMPAA are set out in section 2 thereof. Section 3
of NEMPAA provides that the State, acting
through organs of state
implementing legislation applicable to protected areas, acts as
trustee of those areas in securing the
rights contained in section 24
of the Constitution. Regarding the management and development of
protected areas, in the event of
conflict with any national,
provincial or municipal laws, the provisions of NEMPAA shall prevail.
(section 7(1) of NEMPAA).
[27] In
terms of section 48 of NEMPAA, should the proposed mining area fall
within a protected area, the written
permission of the Ministers of
Environmental Affairs and Mineral resources is required.
[28] As
stated, on 15 January 2021, the MEC excluded the four properties from
the Mabola protected Environment.
The decision sought to be reviewed
is whether the MEC’s decision to exclude the four properties
from the Mabola Protected
Environment should be set aside on any of
the eight grounds of review on the basis that it was either unlawful,
irrational or unreasonable.
[29] On
11 February 2021 the applicants requested written reasons for the
exclusion decision from the MEC in terms
of section 5 of the
Promotion of Administrative Justice Act
[8]
(PAJA).
[30] In
summary the MEC’s rationale for the exclusion as reflected in
Notice 2 of 2021 in the Provincial
Gazette Extraordinary No. 3225 are
follows:
1.
To ensure balance towards use [sic] of national resources for
socio-economic benefits of all citizens/community of Pixley ka Seme
Local Municipality [sic] and the country, while promoting
environmental protection and sustainability;
2.
To ensure/promote economic growth of the country and the
community of the area;
3.
To promote co-existence of mining activities and conservation
within the area on the properties, the boundaries of which are as
indicated on addendum 1 and 2 hereto”.
[31]
The proposed mine is an underground coal mine. It is not in dispute
that mining activities lead to loss of
biodiversity and contamination
of the soil, utilises a large amount of water and this impacts the
water quantity as well as its
quality due to contamination through
acid mine drainage. The reduction in water quantity and quality also
affects the amount of
water available for human consumption. This has
a detrimental impact on people’s access to water and threatens
water security
at both local and national level.
[32] It
is common cause between all the parties that the proposed coal mine
will result in a degree of contamination
of surface and ground water
resources in the area, and that no financial provision has been made
for a water treatment plant. This
is one of the biodiversity concerns
which the second respondent considered when it conducted its
environmental impact assessment.
The second respondent’s
experts predicted that the water will be of poor quality and will
require treatment for a period
of about 40 years.
[33]
This takes me to the eight grounds of review. These grounds of review
are effectively that the MEC did not
act within the ambit of the
enabling legislation, as such, his conduct was unlawful, unreasonable
and procedurally unfair in failing
to take relevant considerations
into account and by taking irrelevant considerations into account, as
contemplated in section 6(2)
of PAJA.
1.
The MEC’s decision contravened section
48 of NEMPAA.
i.
Davis J
in Mining Environmental Justice Community Network of South Africa and
Others v Minister of Environmental Affairs and Others
[9]
at par 10.7 stated, “
Section
48 (1)(b) and 48 (4) should be interpreted to mean the following:
despite the fact that a person may have obtained all the
necessary
authorisations required in terms of all other applicable statutory
provisions in order to lawfully conduct mining activities
on a
certain portion of land, should that land fall within a protected
environment as contemplated in NEMPAA, then such a person
would, in
addition, need to obtain the written permission of both the Ministers
of Environmental Affairs and Mineral Resources
to do so. In
considering a request for such permission, the Ministers shall act as
custodians of such protected environment and
with a strict measure of
scrutiny taking into account the interests of local communities and
the environmental principles referred
to in Section 2 of NEMA. Effect
is given by this interpretation to all the words expressly used in
the section as well as the intentions
of the Legislature contained in
sections 2, 3, 5 and 7 of NEMPAA referred to in paragraph 4 above and
the Act as a whole. It also
deals with the issue of sequence of
authorisations”
ii.
The declaration of Mabola Protected Environment does not constitute a
complete ban on mining
activities. However, there was a need to
obtain written permission of both Ministers. The Ministers act as
custodians of such protected
environments and with a strict measure
of scrutiny, the Ministers would have had to consider the interests
of local communities
and the environmental principles referred to in
section 2 of NEMA. The MEC’s conduct is therefore contrary to
the scrutiny
required in terms of section 48(1)(b) of NEMPAA.
iii.
It is a
settled principle of our law that each functionary operates within
the purpose and ambit of his or her own enabling statutory
provisions
when taking administrative action
[10]
.
iv.
In
Fedsure
Life Assurance Ltd v Greater Johannesburg Transitional Metropolitan
Council
[11]
,
the Constitutional Court stated that, central to the conception of
our constitutional order that the Legislature and Executive
in every
sphere are constrained by the principle that they may exercise no
power and perform no function beyond that conferred
upon them by law.
v. In
this instance, the proposed mining activity is to take place in a
protected environment. This area comprises
of wetlands and grasslands
which have been classified as Irreplaceable Critical Biodiversity
Areas. Therefore, the Ministers were
obliged to consider the
interests of local authorities and environmental principles referred
to in section 2 of NEMA with a strict
manner of scrutiny and this
ground of review should succeed.
2.
Circumvention of the NEMPAA (The MEJCON Judgment)
i.
On 8 November, the Gauteng Division of the High Court set aside the
decision of the Environmental and
Mineral Ministers to grant written
permission to the second respondent to conduct commercial mining in
the Mabola Protected Environment
in terms of section 48(1)(b) of
NEMPAA. See Mining and Environmental Justice Community Network of
South Africa supra.
ii.
The court had
ordered that any decision in terms of section
48(1)(b) of the NEEMPAA should be deferred until: (a) after the
decision of
the statutory appeal against the approval of the second
respondent’s environmental management programme; (b) after the
decision
of the statutory appeal to the Water Tribunal against the
decision to grant a water use licence to the second respondent; and
(c)after
a management plan for the Mabola Protected Environment has
been approved by the MEC in terms of section 39(2) of the NEMPAA.
iii.
The MEC excluded
the four properties from the Mabola Protected
Environment without the Ministers having reconsidered the second
respondent’s
application for permission to conduct commercial
mining in the Mabola Protected Environment. This was done by the MEC
in terms
of section 29(b) of the NEMPAA. The second respondent’s
stance is that there is no violation of the court order as it was
contemplated in that order that at some stage, permission may not be
required from the Ministers if section 29 exclusion is granted
by the
MEC.
iv.
It is common
cause that the management plan contemplated in the order
of the MEJCON judgment has not been approved. The significance of the
management plan is to describe actions needed to ensure that a
protected area achieves the purpose for which it was established.
In
the absence of a management plan, it would be difficult to assess the
impact on the natural environment. The MEC would not know
how the
specific part of the protected environment in which the proposed mine
is to operate is going to be managed without the
management plan.
Even the Ministers would be precluded from exercising their
discretion in terms of section 48(1) (b) of the NEMPAA
without the
management plan. This requirement should, therefore, not have been
by-passed.
v.
In Fuel Retailers
above at par 102, the Constitutional court stated
that, ‘
The role of courts is especially important in the
context of the protection of the environment and giving effect to the
principle
of sustainable. The importance of the protection of the
environment cannot be gainsaid. Its protection is vital to the
enjoyment
of other rights contained in the Bill of Rights; indeed, it
is vital to life itself. It must therefore be protected for the
benefit
of the present and future generations
.’
vi.
It may be,
that the local community would benefit economically should
the mining operations commence. This is an instance where there is
tension
between two conflicting interests. Whilst the court is alive
to the hardships of the community and the consequences to their
well-being
should the mining operations not commence, such
considerations are outweighed by the importance of the protection of
the environment.
3.
Science, policy and law
i.
The applicants contend that the MEC failed to take into consideration
the available science, policy
and law regarding the protection of the
Mabola Protected Environment. The MEC’ rationale for the
exclusion of the properties
to permit mining despite all the
scientific reports evidencing the detrimental impacts of coal mining,
was solely meant to facilitate
inclusive economic development in the
impoverished local communities. According to the MEC the impact could
be mitigated by implementing
measures identified and accepted by the
competent authorities.
ii.
As stated, local communities could benefit. However, of significance
is the purpose of declaring
Mabola a Protected Environment, which was
to protect the irreplaceable biodiversity to protect clean water
supply and other eco-system
services. The main environmental concern
is dewatering and acid mine drainage. Therefore, the MEC’s
failure to consider the
available science, policy and law regarding
the protection of the Mabola Protected Environment is flawed and
renders the exclusion
decision reviewable.
4.
MEC’ failure to consider the precautionary principle and the
vulnerable ecosystem principle.
i. The
applicants contend that section 2(4)(a)(vii) of NEMA sets out the
precautionary principle. The principle
provides that sustainable
development requires the consideration of all relevant factors,
including that a risk averse and cautious
approach is applied, which
takes into account the limits of current knowledge about the
consequences of decisions and actions.
ii. The
precautionary principle applies to the actions of all organs of State
that may significantly affect the
environment. This compels every
environmental decision maker, when faced with the impacts in respect
of which there is uncertainty
or a lack of information, or where the
risk of substantial harm to the environment is too great, to err on
the side of caution
and protection of the environment.
iii.
The Constitutional court in Fuel Retailers at par 98 when dealing
with the contamination of underground water supply stated: “…
there are two matters that should be mentioned in relation to the
duty of environmental authorities which are a source of concern.
The
first relates to the attitude of Water Affairs and Forestry and the
environmental authorities. The environmental authorities
and the
Water Affairs and Forestry did not seem to take seriously the threat
of contamination of underground water supply. The
precautionary
principle required these authorities to insist on adequate
precautionary measures to safeguard against the contamination
of
underground water. This principle is applicable where, due to
unavailable scientific knowledge, there is uncertainty as to the
fault has been found by the panel that there is uncertainty and
inadequate information regarding the impact of the proposed mine
on
biodiversity and ecological considerations. It is common cause there
will be acid mine drainage and damage to the wetlands as
a result of
the mine. The precise nature and extent thereof are unknown. This
calls for this court to err on the side of caution
and protection of
the environment impact of the proposed development.”
iv. It
has been found by the panel that there is uncertainty and inadequate
information regarding the impact of
the proposed mine on biodiversity
and ecological considerations. It is common cause there will be acid
mine drainage and damage
to the wetlands as a result of the mine. The
precise nature and extent thereof are unknown. This calls for this
court to err on
the side of caution and protection of the
environment.
v. On
the proper application of the precautionary principle, the exclusion
decision should not have been made,
thus rendering the decision
reviewable.
5.
The MEC ignored the Environment Minister’ advice and failed to
adhere to the
principle of co-operative governance.
i.
Section 41 of the Constitution requires all spheres of government and
all organs of State to (a) exercise
their powers and perform their
functions in a manner that does not encroach on the geographical,
functional or institutional integrity
of government in another
sphere; and (b) co-operate with one another in mutual trust and good
faith by: consulting one another
on matters of common interest;
coordinating their actions with one another; adhering to agreed
procedures; and avoiding proceedings
against one another.
ii.
On 14 October 2019 the Environment Minister addressed correspondence
to the MEC, following the MEC’
Notice of Intention to exclude
the four properties from the Mabola Protected Environment. In the
correspondence the Environment
Minister drew the attention of the MEC
to the NEMPAA/ MEJCON judgment which remitted the second respondent’s
application
to the Ministers for reconsideration. The Environment
Minister requested the MEC to reconsider his intention to exclude the
properties
as the exclusion may have unintended consequences and cost
implications.
iii.
Legality,
which is the incidence of rule of law, requires the exercise of
public power to be in compliance with the law and within
the
boundaries set by the law, and the rule of law requires rationality
and the non-arbitrary exercise of power
.
[12]
iv.
The MEC was
required to seek to achieve the objects of the Intergovernmental
Relations Act
[13]
by (a)
taking into consideration the circumstances and material interests of
other governmental organs of State in other governments;
(b)
consulting other affected organs of State; (c) coordinating actions
when implementing policy or legislation affecting the material
interests of other governments; and (d) avoiding unnecessary and
wasteful duplication or jurisdictional contents.
v.
Section 32 of the NEMPAA requires the MEC to consult with the
Minister and the relevant municipality
in accordance with the
principles of co-operative governance, and to consult with all
affected provincial organs of State.
vi.
Section 40(2) of the Constitution directs spheres of government to
adhere to the principles of co-operative
governance; and section 41
directs the spheres of government to co-operate with one another.
vii.
The MEC’ failure to adhere to the principles of co-operative
governance, renders the exclusion decision
reviewable.
6.
Bias or reasonably suspected of bias
i. The
applicants contend that the MEC was biased in his decision making as
he associated himself with one side
of a dispute.
ii.
The
impartial adjudication of administrative proceedings is a cornerstone
of any fair and just legal system. The test for bias is
whether a
reasonable, objective and informed person would on the correct facts
reasonably apprehend that the decision maker has
not or will not
bring an impartial mind to bear on the adjudication of the matter,
that is a mind open to persuasion by the evidence
and submissions
made.
[14]
iii.
The MEC did not approach this matter with his mind open to persuasion
but had shut his mind to any submissions
made or evidence tendered in
support of the case he had to decide. The MEC publicly associated
himself as being in favour of the
establishment of the mine in the
Mabola Protected Environment. Before the MEC made his decision to
exclude the properties known,
he made a public statement on 8 May
2020 that he was in support of the mine. He was also quoted by the
City Press Newspaper article
as saying he was committed to the
opening of the mine as it would boost the economy.
iv. The
MEC’ public statements, along with his support for the mine, is
to the exclusion of and in disregard
of the environment significance
of the area and the long-term consequences of allowing mining to
commence in the Mabola Protected
Area. This indicates clear bias in
favour of mining, or at the very least, conduct which gives rise to a
reasonable suspicion of
bias. The MEC was required to conduct himself
in a manner which showed neutrality and openness to all competing
interests and considerations.
The exclusion decision falls to be
reviewed and set aside.
7.
Failure to consider the impacts of mining
i. The
social and economic benefits which the proposed mine would have for
the local community must be weighed
against the disadvantages of the
proposed mine. The second respondent indicated that the mine would
generate 576 employment opportunities
when fully operational.
ii.
The reports concluded that the proposed mining will have high impact
on the wetland’s ecology
of the local area, even with
mitigation. The impact on the water resource will not only affect the
local community but other downstream
water users who rely on the
strategic water source in that area. Several families will have to be
relocated with consequent devastation
to those affected.
iii.
A drop in groundwater levels will affect access to water. This would
affect the biodiversity and natural
grassland in the area. There will
be high impact on the wetland ecology. The proposed benefits to the
local community are incomparable
to the long-term negative
consequences to the environment, which in turn will impact the local
community. The MEC’ failure
to consider the impact of mining
renders the exclusion decision reviewable.
8.
Failure to consider South Africa’s International
responsibilities.
i. Section
2(4)(n) of NEMA requires that global and international
responsibilities relating to the environment must
be discharged in
the national interest. Some of South Africa’s responsibilities
include (a) the general obligations imposed
by the Ramsar Convention
on Wetlands; (b) the duty imposed by the Migratory Species
Convention; (c) the duties imposed by the Convention
on Biological
Diversity; (d) the duty imposed by the United Nations Framework
Convention; and (e) the duties imposed on South Africa
in terms of
the Revised Protocol on Shared Water Courses.
ii.
When providing his reasons for the exclusion decision, the MEC did
not make any reference to South Africa’
International
responsibilities. South Africa has obligations to protect and promote
the conservation of wetlands in its territory.
The wetlands in the
proposed mine area are considered natural and unmodified. Wetlands
play a major role in moderating the quantity
and quality of water of
major rivers.
iii.
The mining operations will negatively affect the quality and
ecological importance of the wetlands. This
would have implications
for South Africa’ International environmental obligations. The
other effect will be on migratory
birds or their patterns. This
exclusion decision equally falls to be reviewed.
Application
to strike out
[34]
Applicants seek an order in terms of Rule 6(15) striking out certain
allegations in the answering affidavit
of the second respondent. The
basis thereof is that the allegations are abusive, vexatious personal
attacks and defamatory material
against the applicants. Further that,
they are at best, wholly irrelevant to the dispute between the
parties and cause the applicants
prejudice; that the second
respondent characteristically inserted them purely with the intent to
harass, annoy and cloud the real
issues; that the allegations have
the potential to cause irreparable to the integrity and reputation of
the applicants and their
members; and that considerable time and
resources would need to be expended to answer all of the allegations.
[35] I
have considered all the complaints referred to by the applicants. I
do not propose to deal with each allegation
as it would make this
judgment unduly lengthy.
[36]
The averments contained in the relevant paragraphs can be summarised
as follows: the documents and articles
the applicants are presenting
as fact, are merely opinions by special interest groups; the authors
of these “so-called”
reports are not qualified by this
court; what was presented as absolute science by the applicants was
wholly debunked by the Water
Tribunal; the applicants have not
disclosed their source of funding; the applicants have a mandate to
review any decision which
is not in their favour, irrespective of the
bona fides
thereof.
[37]
The second respondent’s contention in this regard is that,
there is nothing to be struck out from its
answering affidavit. The
second respondent submits that, it is entitled to criticise the
applicant’s approach and offer its
own opinion and to ensure
that the court understands the context, especially when faced with a
Green Lobby who present their cases
in a tainted manner.
[38]
The meaning of the terms scandalous, vexatious or irrelevant have
been stated in the context of Rule 6(15)
as follows:
1.
Scandalous matter – allegations which may or may not be
relevant, but which are so worded as to
be abusive or defamatory.
2.
Vexatious matter – allegations which may or may not be relevant
but are so worded as to convey
an intention to harass or annoy.
3.
Irrelevant – allegations which do not apply to the matter in
hand and do not contribute in one
way or the other to a decision of
such matter.
[39]
Two requirements must be satisfied before an application to strike
out matter from any affidavit can succeed:
first, the matter sought
to be struck out must be scandalous, vexatious or irrelevant; second,
the court must be satisfied that
if such matter is not struck out the
parties seeking such relief would be prejudiced.
[40] In
Beinash
v Wixley
[15]
the court emphasized the significance of the two requirements. The
court stated further that, in any event, even if it could properly
be
said that this or any other part of the averments made in the
impugned affidavit were indeed ‘scandalous, vexatious or
irrelevant’, it does not follow that the application to strike
out this paragraph should succeed.
[41]
What is clear from this rule is that two requirements must be
satisfied before an application to strike out
matter from any
affidavit can succeed. It has been held that the striking out
procedure is not intended to be utilised to make
technical objections
which merely serve to increase costs and are of no advantage to the
litigating parties. It is for these reasons
that sufficient degree of
prejudice should be present and such proof of prejudice is required.
Anderson
and Another v Port Elizabeth Municipality
[16]
.
I am not satisfied that prejudice can be deduced from the facts if
the allegations contained from the impugned answering affidavit
were
not struck out.
Costs
[42]
The two basic principles to costs are, firstly that the award of
costs is in the discretion of the presiding
officer. Secondly that a
successful party should, as a general rule, be awarded costs. The
applicants have been substantially successful
in respect of the main
application and are entitled to their costs.
[43]
The next question is whether a punitive cost order should be granted
against the second respondent for the
late filing of its answering
affidavit. The applicants contend for a punitive cost order against
the second respondent on the basis
that the second respondent made
allegations against the applicants that have been shown to be
baseless, manifestly scurrilous and
irrelevant. Further that, the
second respondent filed its answering affidavit only eight court days
before this application was
set down to be heard on an unopposed
basis; that it did so in circumstances where it had failed to respond
to two letters regarding
the filing of its answering affidavit, and
failed to request an extension of time.
[44]
Although the second respondent had not applied for an extension of
time, it had tendered costs.
[45] It
is trite that the rationale for a punitive attorney and client costs
order is more than mere punishment
of the losing party. From
judgments of the Supreme Court of Appeal, a court should be
disinclined to grant costs orders on the
scale as between attorney
and client until salient argument and sufficient forensic debate have
helped to establish the appropriate
judicial basis on which to make
them.
AA
Alloy Foundry (Pty) Ltd v Titaco Projects (Pty) Ltd
[17]
and
Thoroughbred
Breeders Association v Price Waterhouse
.
[18]
[46] I
am not persuaded that a punitive cost order is warranted. In the
premises, I am of the view that costs
should be awarded in favour of
the applicants against the respondent only on a party and party
scale.
[47]
Accordingly, I make the following order: -
Order
1.
The decision of the first respondent on 15 January 2021 to exclude
four properties from the Mabola Protected
Environment is reviewed and
set aside.
2.
The second respondent is to pay the costs.
3.
Costs of the late filing of the second respondent’s answering
affidavit are to be paid by the second
respondent on a party and
party scale.
M MOLELEKI
Acting Judge of The High
Court
Mpumalanga Division,
Mbombela (Main Seat)
Appearances:
For
the Applicants:
Adv
Nyoko Muvangua
Adv
Kathleen Hardy
Centre
for Environmental Rights
2
nd
Floor, Springtime Studios
1
Scott Road, Observatory, Cape Town
C/O
Du Toit-Smuts and Partners Law Chambers, Van Niekerk Street,
Mbombela.
Counsel for 2
nd
Resp:
Adv Rael Zimerman
Taitz
& Skikne Attorneys
Genesis
Building, Lower Ground Level
10
Sandler Road
Fairmount,
Johannesburg
C/O
Pieter Swanepoel Attorneys
Ground
Floor, Corner House
Corner
Russel and Nel Streets
Nelspruit.
Date
of Hearing:
16
April 2024
Date of Judgment:
18 July 2024
[1]
57
of 2003.
[2]
Ibid.
[3]
107
of 1998.
[4]
(50779/2017) [2018] ZAGPPHC 807 (8 November 2018).
[5]
107 of 1998.
[6]
57 of 2003.
[7]
10 of 2004.
[8]
3 of 2000
[9]
(50779/2017) [2018] ZAGPPHC 807 (8 November 2018) at para 10.7.
[10]
Fuel
Retailers Association of South Africa (Pty) Ltd v Director-General
Environmental Management Mpumalanga Province
2007(6)
SA 4 (CC).
[11]
1999(1)
SA 374 (CC) at par 48
[12]
Masetlha
v President of the Republic of South Africa and Another
[2017]
ZACC 20
; 2008(1) SA 566 (CC) at par 173.
[13]
13 of 2005.
[14]
President
of the Republic of South Africa and Others v South African Rugby
Football Union and Others
1999(4)
SA 147 (CC) par 35 and 48.
[15]
[1999]
ZASCA 32
; 1997(3) SA 721 (SCA) at 733A-B.
[16]
1954(2)
SA 299 (E)
[17]
2000(1)
SA 639 (SCA) at 648 E-I.
[18]
2001(4) SA 551 (SCA) at 596 D-I.