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[2020] ZASCA 96
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Samancor Chrome Ltd v VDH Holdings (Pty) Ltd and Others (344/19) [2020] ZASCA 96 (27 August 2020)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not reportable
Case
no: 344/19
In
the matter between:
SAMANCOR
CHROME
LIMITED
APPELLANT
and
VDH
HOLDINGS (PTY)
LTD
FIRST RESPONDENT
ABSOLUTE
GROUP MANAGEMENT (PTY) LTD
SECOND RESPONDENT
MINISTER
OF MINERAL RESOURCES
THIRD RESPONDENT
DIRECTOR-GENERAL: DEPARTMENT
OF
FOURTH RESPONDENT
MINERAL
RESOURCES
DEPUTY DIRECTOR-GENERAL: DEPARTMENT
OF
FIFTH RESPONDENT
MINERAL
RESOURCES
REGIONAL MANAGER, LIMPOPO
REGION:
SIXTH RESPONDENT
DEPARTMENT
OF MINERAL
RESOURCES
MINISTER
OF ENVIRONMENTAL AFFAIRS
SEVENTH RESPONDENT
KOPANONG
SHOPPING CENTRE (PTY) LTD
EIGHTH RESPONDENT
MINISTER
OF PUBLIC WORKS
NINTH RESPONDENT
LIMPOPO HEADMEN’S
ASSOCIATION
TENTH RESPONDENT
Neutral
Citation:
Samancor
Chrome Ltd v VDH Holdings (Pty) Ltd and Others
(Case no 344/19)
[2020] ZASCA 96
(27 August 2020)
Coram:
Cachalia,
Saldulker, Mbha and Van der Merwe JJA and Matojane AJA
Heard:
19 May
2020
Delivered:
This
judgment was handed down electronically by circulation to the
parties’ legal representatives by email, publication on
the
Supreme Court of Appeal website and release to SAFLII. The date and
time for hand-down is deemed to be 09h45 on 27 August 2020
Summary:
Section 22(4)
(b)
of the
Mineral and Petroleum Resources Development Act 28 of 2002
–
whether the appellant satisfied the requirement to notify and consult
with interested and affected persons – High
Court's order
reviewing and setting aside the decision of the Minister of Mining
Resources to grant a mining right to the appellant
set aside –
appeal upheld – applications to lead further evidence and to
intervene dismissed.
ORDER
On
appeal from
:
The Gauteng Division, Pretoria (De Vos J, sitting as court of first
instance):
(a) The appeal is upheld
with costs, such costs to be paid by the respondents jointly and
severally, the one paying the other to
be absolved, including the
costs attendant upon the employment of two counsel.
(b) The order of the high
court dated 16 November 2018 is set aside and substituted with the
following:
'The first and second
respondents' application to review and set aside the decision of the
Minister of Mineral Resources dated 31
October 2016 is dismissed with
costs, such costs to include the costs of two counsel.'
(c) The cross-appeal by
the first and second respondents is dismissed with costs, such costs
to include costs attendant upon the
employment of two counsel.
(d) The application to
lead further evidence by the appellant is dismissed with costs, such
costs to include the costs attendant
upon employing two counsel.
(e) The application to
intervene is dismissed with costs in favour of the first and second
respondents, such costs to include the
costs attendant upon the
employment of two counsel.
(f)
The fifth respondent (the Minister) shall bear his own costs.
JUDGMENT
Mbha
JA (Cachalia, Saldulker and Van der Merwe JJA and Matojane AJA
concurring):
[1]
The central issue for determination in this appeal is whether the
appellant, Samancor Chrome Limited (Samancor), in pursuance
of its
application to be granted a mining right in terms of the Mineral and
Petroleum Resources Development Act No 28 of 2002 (‘the
MPRDA’,
or simply ‘the Act’), satisfied the requirements set out
in s 22(4)(b) of the MPRDA to notify and
consult with any
interested and affected parties as defined.
[1]
[2]
The requirement to notify and consult with interested and affected
parties accords with the specified objects of the Act, as
set out in
s 2 thereof. In particular, the Act aims to ensure that the
nation's mineral and petroleum resources are exploited
in an orderly
and ecologically sustainable manner, while promoting social and
economic development. Importantly, it seeks to ensure
that holders of
mining rights contribute towards the socio-economic development of
the areas in which they operate.
[3]
VDH Holdings (Pty) Ltd and Absolute Group Management (Pty) Ltd (the
first and second respondents, respectively) launched review
proceedings to set aside the granting of a mining right to Samancor
by the third respondent, the Minister of Mineral Resources
(the
Minister). The right was granted to Samancor in respect of the farms
Wintersveld 417 KS, Jagdlust 418 KS (portion
1, as well as
the remaining extent), and Zeekoegat 421 KS, all three of which
are situated in the Limpopo Province. This,
after Samancor had
appealed to the Minister, in terms of s 96 of the MPRDA,
[2]
against
the refusal by the Director-General of the Department of Mineral
Resources (the DG) to grant its application.
[4]
On 16 November 2018, the Gauteng Division of the High Court, Pretoria
(De Vos J) held that Samancor had failed to notify and
consult with
the communities that would be affected by its mining operations. It
accordingly set aside the Minister's decision
and referred the matter
back to him for reconsideration. Samancor appeals against the order
of the high court. The first and second
respondents have also
cross-appealed against the decision of the high court remitting the
matter to the Minister. The cross-appeal
further relates to the fate
of the respondents' applications for prospecting rights submitted to
the Regional Manager of the Limpopo
Region for the Department of
Mineral Resources (the RM). The appeal and the cross-appeal are with
the leave of the high court.
VDH Holdings (Pty) Ltd and Absolute
Group Management (Pty) Ltd are the only respondents before us on
appeal and are hereafter collectively
referred to as ‘the
respondents’.
[5]
This court has also been asked to entertain two additional
applications: First, Samancor has applied to lead further evidence
on
appeal. In essence, it avers that the respondents had misled the
court a quo by introducing false evidence comprising 781
supplementary
affidavits deposed to by members of the community to
show that Samancor had not consulted with them. This application is
opposed
by the respondents.
[6]
The allegations and counter-allegations in this application are the
subject of a pending rescission application brought by Samancor
in
the high court. However, in his judgment, De Vos J made it clear that
the contents of those affidavits played no role whatsoever
in his
decision. It is trite that new evidence will be admitted on appeal
only in exceptional circumstances. One of the general
requirements
for such an application is that the new evidence must be weighty and
material to the outcome of the appeal. The evidence
that Samancor
wishes to introduce does not meet this requirement and accordingly
falls to be dismissed.
[7]
Secondly, there is a voluminous application by three parties, namely
the Baroka Ba Nkwana Royal Family, the Baroka Ba Nkwana
Community and
the Jagdlust Engagement and Stakeholders Engagement Forum, for leave
to intervene as parties in the proceedings which
form the appeal and
the cross-appeal. This application was only filed on 5 May 2020,
shortly before this appeal was heard, and
was opposed by the
respondents. There is no specific prayer in the notice of motion
requesting any relief with reference to either
the appeal or the
cross-appeal, but it is clear from the contents of the founding
affidavit that all the applicants support Samancor’s
stance in
the appeal.
[8]
They averred that they have a direct and substantial interest in
Samancor retaining its rights to commence mining on the farms.
Reliance was placed on a Memorandum of Agreement dated 25 January
2019, entered into between the Bapedi Kingdom and the Baroka
Ba
Nkwana community, on the one hand, and Samancor on the other. In
terms of this agreement, the parties agreed to work together
for
purposes of expediting the commencement of mining and associated
operations by Samancor on the mining area. Clearly, a partnership
or
working relationship of some sort has been established between the
parties for their mutual benefit.
[9]
On the facts it is beyond any question that these applicants have a
purely financial interest in the proceedings. Therefore
they do not
comply with the applicable test to establish a legal interest to
intervene in these proceedings. In
Bowring
NO v Vrededorp Properties CC and Another
,
[3]
Brand
JA restated the well-known test for joinder of necessity, which also
applies to an application for intervention, as follows:
'The
substantial test is whether the party that is alleged to be a
necessary party for purposes of joinder has a legal interest
in the
subject-matter of the litigation, which may be affected prejudicially
by the judgment of the Court in the proceedings concerned
...'
.
The
application for leave to intervene must accordingly suffer the same
fate as the one brought by Samancor for the leading of further
evidence.
[10]
I deem it expedient to mention at this point that, although the
Minister's decision to grant Samancor a mining right is at
the heart
of this litigation, the Minister elected not to file any papers in
either the court below or on appeal to justify his
decision. That
election was extraordinary. Considering that the Minister represents
the State in its role as the custodian of the
nation’s mineral
and petroleum resources,
[4]
he had
a constitutional duty to assist the court by explaining the reasoning
behind his decision to overturn the DG's decision to
refuse
Samancor's application for a mining right. Moreover, in the
cross-appeal the respondents specifically seek an order that
the
matter not be remitted to the Minister for reconsideration on the
basis of, inter alia, his perceived bias in favour of Samancor.
This
court, of its own accord, therefore invited submissions from the
Minister, to assist the court. The court is thankful for
the
subsequent submissions by Advocate M P van der Merwe SC, made on the
Minister's behalf, which were of great assistance and
benefit in
deciding this matter.
[5]
[11]
I now turn to consider the appeal and cross-appeal before this court.
I will start with the factual matrix against which the
dispute
between the parties arose. The appellant and the respondents are
rival mining firms seeking to exploit the same substantial
chrome
resources on four properties in the Limpopo Province, namely,
Wintersveld 417 KS, portions 1 and the remaining extent
of the
farm Jagdlust 418 KS (two separate properties) and the farm
Zeekoegat 421 KS (together referred to as ‘the
properties’).
[12]
Samancor has a long history of involvement with the properties. It is
the registered owner of two portions of the properties,
namely
Wintersveld 417 KS and portion 1 of the farm Jagdlust 418 KS.
From about 2003 Samancor held prospecting rights
under the now
repealed Minerals Act 50 of 1991 in respect of an area in excess of
6 000 hectares situated over the properties
(the mining area).
These prospecting rights were subsequently recognised under the
provisions of the MPRDA.
[13]
Under the prospecting rights Samancor, over an extended protracted
period of time, prospected for chrome on the properties.
This also
involved consultation with the various communities residing within
the mining area, from around 2008. The positive results
of the
prospecting activities prompted Samancor to apply, on 18 November
2011, in terms of s 22 of the MPRDA, for an underground
and
opencast mining operation, which it referred to as ‘the
Jagdlust operation’. Samancor applied for the maximum period
of
30 years to allow for a 22-year mining period commencing in 2018.
[14]
The Regional Manager (the RM) accepted Samancor's mining right
application on 22 June 2012. Simultaneously, the RM instructed
Samancor to submit a scoping report, within 30 days; to conduct an
environmental impact assessment (EIA) and submit an environmental
management programme (EMPR); and to notify and consult with
interested and affected parties within 180 days (ie by 18 December
2013).
[6]
On 16
December 2012, within the specified timeframe, Samancor lodged its
combined EIA report and EMPR with the office of the RM.
[15]
On 4 January 2014 the RM sent a letter to Samancor, purportedly in
terms of
regulation 49(3)
of the
Mineral and Petroleum Resources
Development Regulations (the
Regulations).
[7]
The
letter is poorly drafted, unclear and confusing. It read as follows:
'Samancor Chrome Limited the EMP
submitted on the 23 February 2014:
·
Attachment
on EMP. No confirmation that the description of the environment has
been compiled with the participation of the community,
the landowner
and interested and affected parties. (Note: consultation report, as
you have indicated on the EMP is not attached.)
Newspaper advert,
roll call, site notices and minutes and comments from the interested
and affected parties.
·
You
are also instructed to consult the surrounding communities and bring
back the results. You must also consult Kgoshi Kgolo
[8]
of Bapedi.
The
raised issues should be addressed on or before 24 March 2014 ...'
.
[16]
Samancor understood the RM's aforesaid letter to mean that he was not
aware of the consultation it had undertaken with the
communities,
because a consultation report was not attached to Samancor's EMPR.
Accordingly, on 20 March 2014 Samancor's legal
manager, Mr Laubscher,
re-submitted a public participation report to the RM. He specifically
highlighted the fact that the
public participation process had
commenced in 2008 and continued in 2012. He also noted that ‘[the]
process involved the
Bapedi and surrounding communities and [that]
the report specifically addressed the site notices, minutes and
comments of the interested
and affected parties'.
[17]
Mr Laubscher also requested the RM to revert to him in the event of
his having any further queries. It appears that the RM
intended to
send a further letter
[9]
by fax
to Samancor, dated 27 March 2014, indicating that the information
submitted was not sufficient. Samancor did not receive
the letter. A
fax transmission slip shows that the attempt to fax this letter to
Samancor had failed.
[18] On 14 June 2016
Samancor received the DG's decision, which was apparently made on 11
March 2016, to refuse its mining right
application. The sole reason
the DG gave for his decision was:
'Failure to comply
with
s 39(5)
[of the MPRDA] read with
regulation 50
(f)
of [the Regulations] … in that proof of consultation with
interested and affected parties together with results of public
participation were never submitted.'
[19]
Samancor appealed to the Minister against the DG's decision in terms
of
s 96
of the MPRDA, read with reg 74 of the Regulations.
[10]
In its
appeal Samancor explained firstly, that it had responded to the RM’s
letter of 4 January 2014, by furnishing him with
a copy of its
comprehensive public participation document that evidenced Samancor’s
compliance with the consultation and
public participation
requirements under the MPRDA and the Regulations; and, secondly, that
if the DG was of the view that Samancor
had not adequately complied
with any obligation under these provisions of the MPRDA, he ought to
have given Samancor notice thereof
and an opportunity to comply.
[20]
As provided for in the Regulations, the RM responded to Samancor's
appeal. He pointed out that Samancor's consultative meetings
held as
far back as 2008 (when Samancor was in the process of prospecting for
chrome) were not relevant to a mining right application
lodged three
years later in 2011; that Samancor had failed to follow the RM's
directives as contained in his letters dated 4 January
2014 and 27
March 2014; that Samancor had failed to submit proof of consultation
with the interested and affected parties, as well
as the results of
such public participations; and that Samancor had failed to submit
the results of any consultation with the Kgoshi
Kgolo of the Bapedi.
[21]
The respondents also responded to Samancor's appeal by making
submissions, on 5 July 2016, in which they criticised the
consultation
process Samancor had followed. It bears mention that, by
then, the respondents had lodged multiple applications for
prospecting
rights for chrome on the properties. They first did so on
22 December 2014, which was even before the DG had refused Samancor's
mining right application on 11 March 2016. The RM rightly rejected
the applications on the basis that Samancor's mining right
application was still pending.
[11]
[22]
On 31 October 2016 the Minister upheld Samancor’s appeal and
set-aside the DG's decision to refuse Samancor's application
for a
mining right on the properties. In so doing he appears to have
accepted the recommendation of the Deputy Director-General:
Corporate
Services that Samancor had provided adequate proof of the
consultation process which it had forwarded to the RM, including
its
consultation with the Kgoshi Kgolo of the Bapedi Nation in accordance
with the RM's request. The Minister also granted Samancor
a mining
right. Samancor's EMPR was approved by the RM in July 2017 and its
mining right was then notarially executed.
[23]
In January 2017 the respondents launched the review application
mainly on the ground, as they had done in the internal appeal
process, that the consultation process undertaken by Samancor was
inadequate and did not meet the requirements of
s 22(4)
(b)
of the MPRDA. They also contended that Samancor had failed to comply
with the RM's letter of 4 January 2014, which the respondents
considered to be a binding directive. The other grounds advanced for
the review are not relevant for the purpose of this judgment.
[12]
[24]
In making its order, the high court made it clear that the only basis
on which it set aside the Minister's appeal decision
was because of
Samancor's 'failure to notify and consult with interested and
affected parties', as was required by
s 22(4)
(b)
of the MPRDA.
[25]
Section 22(4)
(b)
must be read together with the definition of 'community' in
s 1
of the MPRDA, and the definition of 'interested and affected
person'
[13]
in the
Regulations.
[14]
For
purposes of the MPRDA, ‘community’ means:
[A] group of historically
disadvantaged persons with interest or rights in a particular area of
land on which the members have or
exercise communal rights in terms
of an agreement, custom or law: Provided that, where as a consequence
of the provisions of this
act, negotiations or consultations with the
community is required, the community shall include the members or
part of the community
directly affected by mining on land occupied by
such members or part of the community.'
Secondly,
the Regulations define an ‘interested and affected person’
as
‘
a
natural or juristic person or an association of persons with a direct
interest in the proposed or existing operation or who may
be affected
by the proposed or existing operation’.
[26] Before us it was
submitted on Samancor's behalf that it had followed all the necessary
steps required to satisfy the requirements
of
s 22(4)
(b)
.
Reliance was placed on Samancor's EMPR document headed 'Comprehensive
Public Participation Document: Eastern Chrome Mines –
Jagdlust
Section', wherein Samancor explained that it took the following
measures to notify and consult with communities occupying
the mining
area, as well as the surrounding communities and organisations,
associations and businesses in the area:
26.1 In September 2012
Samancor notified certain institutions, traditional communities and
individuals, not only on the properties
where the mining operations
are situated but also on adjacent properties and in affected
municipalities, of its new mining right
application. It provided them
with copies of the Background Information Document (BID) relating to
the application for a mining
right and invited them to register as an
interested and affected person. Samancor posted the BID to more than
50 such institutions,
communities and individuals.
26.2 Samancor convened a
public meeting on its mining right application on 5 December 2012. It
gave notice of the public meeting
to all the communities located on
Jagdlust, Wintersveld and Zeekoegat in the direct vicinity of the
Samancor mining area. These
are the communities of Tjibeng,
Mmashikwe, Mohlahlaneng, Bogalatladi, Mogolaneng, Mmabulela,
Machakaneng and Sefateng, which reside
on the properties. It also
directly sent over 200 SMS invitations, and emailed 107 such
invitations to attend the meeting, including
to some members of these
communities and organisations working within them.
26.3 Samancor published
notices of the meeting in two newspapers, namely the Daily Sun and
the Steelburger, on 5 and 2 November
2012 respectively. It also gave
notice of the meeting on posters, one of which was placed in the
Potalake Nature Reserve, another
at Zeekoegat and a third between
Jagdlust and Zeekoegat, the latter two being along the R37. Samancor
averred that the posters
had been placed at well-trafficked locations
on the properties, where most members of these communities would pass
at one time
or another.
26.4 According to the
register of attendance of the meeting on 5 December 2012, attached to
Samancor's EMPR, this meeting was attended
by various members of the
communities directly affected and by representatives of several
surrounding communities and other interested
organisations.
26.5
Samancor subsequently consulted directly with the Baroka Ba Nkwana
Traditional Authority, which is recognised by statute
[15]
as one
of the main and relevant traditional structures representing the
communities living on the farms Jagdlust, Zeekoegat and
Wintersveld.
It is not disputed that the Baroka Ba Nkwana Traditional Authority
has affirmed its support for Samancor's application,
and has gone on
record stating that it is anxious for the contemplated mining
activities to commence because of the potential local
economic
projects entailed by Samancor's social and labour plan may begin to
flow in an area that is in desperate need of such
projects.
None
of this evidence was disputed or seriously challenged.
[27]
Before us the respondents rightly accepted that
s 22(4)(b)
did not
provide the RM with the power to issue a ‘binding directive'.
They argued that on its own showing, Samancor failed
to comply with
its obligation in terms of
s 22(4)(b)
to notify and consult with
interested and affected parties in two respects. These were; first,
inadequate notification to and consultation
with the interested and
affected communities and second, the absence of consultation with the
Kgoshi Kgolo of the Bapedi. I discuss
these contentions in turn.
[28]
A closer look at the respondents' complaints reveals that they were
simply critical of certain aspects of the process followed
by
Samancor without, however, suggesting or showing that their
criticisms are in any way material. For example, the respondents
aver
that the public meeting of 5 December 2012 was attended by only 43
people, mainly, if not exclusively, from the farm Jagdlust,
out of
thousands of people living in at least ten different communities on
the three farms.
[29]
In my view, this complaint is misconceived. The attendance register
included in the record shows that representatives and residents
from
the communities living on all of the farms constituting the
properties attended the meeting. In any event, the number of
attendees at the meeting does not detract from the fact that many
communities, associations and individuals were given due notice
about
the meeting. As Nugent JA put it in
Minister
of Home Affairs and Others v Scalabrini Centre and Others
,
[16]
‘
an
obligation to consult demands only that the person who is entitled to
be consulted be afforded an adequate opportunity to exercise
that
right’. And, importantly, it is ‘[o]nly if that right is
denied [that] the obligation to consult [is] breached’.
Accordingly, where persons have been invited to express a view and
have elected not to do so, it does not follow that they have
been
denied the right to be consulted.
[17]
The
respondents’ contention in this regard is essentially a non
sequitur. The right to be consulted that is conferred on interested
and affected individuals by the MPRDA does not imply a concomitant
duty on Samancor to ensure that such persons exercise that right.
There could be a variety of reasons, all of which are merely
speculative, why community members, even though invited, chose not
to
attend the meeting. The critical point is that, provided the
communities were given due notice of the proposed public
participation,
which I find to be the case here, it cannot be said
that they were denied the right to participate and express a view.
[30]
Of particular significance and what, in my view, should have weighed
heavily with the court a quo, is that although the respondents'
complaint related to the adequacy of the consultative efforts
employed by Samancor, no person with a right to be notified and
consulted, ie one who is likely to be directly affected by the
proposed mining operations, has come forward in support of the
respondents'
application by complaining that he or she has not been
afforded that right. This is in stark contrast to previous cases
relating
to the obligation to consult, both in this court as well as
the Constitutional Court, such as
Bengwenyama
[18]
and
Maledu
.
[19]
[31]
As to the content of the consultation, I have perused the agenda
items presented and discussed at the consultative meeting
held on 5
December 2012 and the minutes thereof. The topics covered a wide
variety of environment related issues such as the anticipated
effects
of the mining operations on air quality, the noise and dust impact,
groundwater, rehabilitation and building of additional
boreholes,
vibration and so forth. Over and above oral presentation, projected
slides were also used to disseminate all relevant
information.
[32]
In my view, the respondents have failed to identify any issue that
ought to have been dealt with in the consultation process
but was
not. The high-water mark of their claim was that some potential,
though as yet unidentified harm, might have been identified
in a more
extensive consultative process. This was pure speculation. It also
has to be kept in mind, as the Constitutional Court
has confirmed in
Maledu
,
[20]
that
after the grant of a mining right under the MPRDA, the affected
communities would be protected from harm in that Samancor,
even as a
rights-holder, will be obliged to engage with them as lawful
occupiers in terms of
s 54
of the MPRDA.
[21]
[33]
I now deal specifically with the high court’s reasons for its
finding that Samancor had not notified and consulted adequately
with
interested and affected parties, as required by
s 22(4)
(b)
of the MPRDA.
[34] The court a quo was
critical of the following aspects relating to the public
participation meeting convened on 5 December 2012:
34.1 The meeting was held
on a Wednesday, when most of the lawful occupiers and affected
parties were at work. While it is correct
that the meeting was indeed
convened on a weekday, Samancor's environmental consultants, M2
Environmental Connections (Pty) Ltd
(MENCO), took positive steps to
confirm the attendance of registered interested and affected persons
before the meeting. This is
evidenced by MENCO's records of
confirmation of interested and affected persons' attendance that were
obtained prior to the meeting
and included in the EMPR. Importantly,
none of the occupiers or other interested and affected persons
complained that they were
prejudiced by the fact that the meeting was
held on a Wednesday, or that they were precluded from consulting with
Samancor or its
application as a result. Whilst it may have been
preferable to have convened a further meeting in addition to the one
held on 5
December 2012, this was not sufficient reason for finding
that the meeting fell short of compliance with
s 22
(4)(b) of the
MPRDA.
34.2 Consultation was
required with the owners of the 46 boreholes on or adjacent to the
mining site and the people who depended
on borehole water. In this
regard the court a quo assumed that Samancor did not consult on the
issue of the impact of its mining
operations on borehole water
supply. However, this issue was specifically raised in the meeting of
5 December 2012 and was addressed
by Samancor in its EMPR. The
minutes of the meeting reflect that Samancor's response was that
'Underground mining will not affect
boreholes as this will only
impact the lower aquifer and not the top aquifer in which boreholes
are sunk'. In any event, Samancor's
EMPR set out the extensive
measures it will take to protect borehole water supply. The subject
matter of the information session
at the meeting, to explain and
discuss the impacts of the proposed mining operation with those who
would be directly affected,
is evidenced in the Power-Point
presentation included in the EMPR. The finding that the information
provided was superficial and
lacked detail is therefore incorrect.
34.3 Several important
issues were raised at the meeting but were never responded to and
that these were merely noted in the EMPR.
However, in saying so the
high court appears to have relied on an incomplete version of the
EMPR that was attached to the respondents'
founding affidavit marked
annexure FA19. Samancor indicated in its answering affidavit that
this was an incorrect document, that
the correct document was
annexure FA4, which contained the minutes of the meeting of 5
December 2012 and which included a table
of the questions raised at
the meeting and the responses given.
34.4 Samancor did not
address the interests of the adjacent communities and that they were
not contacted at all. This finding is
similarly incorrect. The public
participation report in the EMPR evidences that Samancor's MENCO
published the notice of the public
meeting of 5 December 2012 widely,
including to the local and traditional authorities, associations and
businesses in the surrounding
areas. Samancor has shown that to this
end, MENCO sent over 200 SMS invitations, emailed another 107 such
invitations and posted
copies of Basic Information Document to more
than 50 potential interested and affected persons, including local
authorities and
community representatives in surrounding areas.
34.5 In respect of the
posters Samancor had displayed to advertise the public meeting of 5
December 2012, 'there is no indication
where these posters appeared'.
This finding is, with respect, not borne out by the evidence. The
EMPR public participation report
included a map showing where the
posters were situated. It may well be that Samancor could have put up
more posters given the extent
of the properties, but a blanket
finding that there was no indication where these were posted is
clearly unjustified. As alluded
to earlier, Samancor also published
notices of the meeting in two local newspapers. These were also
posted at Samancor's existing
Jagdlust operations.
34.6 There was no
indication that the traditional leaders who Samancor had consulted
with, informed the lawful occupiers of the
consequences of the
proposed mining operation and how it will affect them. This criticism
is also misconceived. The concern that
Samancor did not satisfy
itself that this had happened, was never raised as an issue in the
court a quo. In any event, Samancor
was entitled to assume that the
traditional authorities it consulted would in turn, inform and engage
with their constituencies
on the consequences of the proposed mining
operation. Furthermore, Samancor did not rely solely on communication
with traditional
leaders in the public participation process, but
circulated its BID and issued public notices to the communities on
the mining
properties and surrounding areas as aforesaid.
34.7
Samancor never provided follow-up information to interested and
affected persons after the public participation meeting on
5 December
2012, and neither did it explain the full extent of its further
engagement with registered interested and affected persons.
Once
again, Samancor was never called upon to indicate whether it did
provide follow-up information to interested and affected
persons.
Nevertheless, it is apparent from the record that Samancor did
continue to engage with persons the Department considered
to be
interested and affected persons after the meeting of 5 December 2012.
Samancor indicated, for instance, that it met with
the Bapedi Tribal
Council and then-acting Kgoshi Kgolo, Mr Kgagudi Kenneth Sekhukhune,
on two occasions on 6 June 2014 and 24 February
2016.
[35]
The court a quo also found, wrongly in my view, that the Interim
Protection of Informal Land Rights Act 31 of 1996 (the IPILRA)
was
applicable in this case and, as a result, that Samancor had to
procure the consent of the communities protected under this
Act. It
further held that it was common cause that the IPILRA had not been
complied with. The application of the IPILRA was not
addressed at all
in the proceedings in the court a quo – not in the papers, nor
at the hearing. Importantly, none of the
owners or occupiers of the
properties contended that they were unlawfully deprived of their
rights under the IPILRA in the grant
of the mining right to Samancor.
The high court thus erred in finding that IPILRA's application was
common cause and that this
Act had a bearing on any of the complaints
made by the respondents in the review application.
[36]
I now turn to the matter of the need to consult the Kgoshi Kgolo of
the Bapedi. It could not properly be suggested that the
Kgoshi fell
within the definition of 'interested and affected parties'. There was
no evidence that the Kgoshi had a direct interest
in Samancor’s
proposed operation, nor that he might be affected thereby. The high
court accepted the respondents' argument
at the time that Samancor
was obliged to consult with the Kgoshi Kgolo of Bapedi because the RM
had directed Samancor to do so
in his letter of 14 January 2014. The
court a quo thus accepted that this letter was a binding directive in
terms of s 39(5)
[22]
of the
MPRDA, read with reg 50
(f)
,
which had not been challenged on review by Samancor. In my view the
court below erred on the facts. The letter stated expressly
in its
heading that it was issued under reg 49(3) of the Regulations, not
s 39(5) of the MPRDA.
[37]
The reference to reg 49(3) makes sense in the context of the contents
of the letter. Regulation 49(3)-(5)
[23]
set
out the RM's functions upon the receipt of a scoping report. The RM's
task is purely administrative and he or she must collate
and forward
comments on the scoping report to an applicant for incorporation into
the applicant's EMPR. It goes without saying
that, in doing so, the
RM does not issue any 'directive', as the court a quo accepted, that
could be subject to internal appeal
or (judicial) review. The RM is
required simply to afford the applicant notice of the comments.
Accordingly, Samancor's duty under
regulation 49(5) is to 'address
and incorporate all such comments'. This is what Samancor was asked
to do in the letter of 4 January
2014, namely, to address the issues
and provide a written response.
[38]
Despite the fact that Samancor had no legal obligation to consult
with the Kgoshi Kgolo of the Bapedi Kingdom, it did in fact
consult
with the acting Kgoshi Kgolo at the time, Mr Sekhukhune. Samancor met
with Mr Sekhukhune on 6 June 2014 to discuss its
proposed mining
operation. He was also in attendance at the meeting on 24 February
2016 between Samancor and the Bapedi Kingdom
Tribal Council, where
further discussions on Samancor's proposed mining activities were
held.
[39]
Ultimately the judgment as to whether there had been proper
consultation with interested and affected parties as required by
s 22
(4) (b) is one that the decision-maker must make, not the court. A
court will only interfere with the decision if it is one
to which no
reasonable decision maker could have arrived at.
[24]
The
court a quo should therefore have considered whether a reasonable
decision-maker in the position of the Minister, exercising
an appeal
power and on the information before him, could have reached the
conclusion that there was adequate notification and consultation
in
respect of Samancor’s application for the mining right, and
having regard to the particular circumstances of the matter.
These
include the length of time the matter had already been proceeding;
that Samancor had been involved with the communities since
2008, and
had invested large amounts of money into the project; and, most
importantly, that none of the involved communities, or
any individual
citizens therefrom, had advanced any complaints relating to
Samancor's consultation. And as I have pointed out earlier
the court
a quo’s acceptance of the respondents’ criticisms of the
adequacy of the consultation process were largely
unfounded. In this
regard sight must not be lost of the fact that the respondents were
not interested and affected persons in terms
of the MPRDA. They are
merely business rivals to Samancor, in pursuit of furthering their
own commercial interests through mining
for chrome in the same area.
The court a quo should have found that there was no ground for
interference with the Minister’s
decision.
[40] For all these
reasons Samancor's appeal must succeed. The upholding of the appeal
leads ineluctably to the conclusion that
the respondents'
cross-appeal has to fail. Clearly it could only have succeeded if the
main appeal had failed, in which event this
Court would have to
consider the appropriateness of issuing the mining right to the
respondents and not remitting the matter to
the Minister for
reconsideration. Accordingly, I make the following order:
(a) The appeal is upheld
with costs, such costs to be paid by the respondents jointly and
severally, the one paying the other to
be absolved, including the
costs attendant upon the employment of two counsel.
(b) The order of the high
court dated 16 November 2018 is set aside and substituted with the
following:
'The first and second
respondents' application to review and set aside the decision of the
Minister of Mineral Resources dated 31
October 2016 is dismissed with
costs, such costs to include the costs of two counsel.'
(c) The cross-appeal by
the first and second respondents is dismissed with costs, such costs
to include the costs attendant upon
the employment of two counsel.
(d) The application to
lead further evidence by the appellant is dismissed with costs, such
costs to include the costs attendant
upon the employment of two
counsel.
(e) The application to
intervene is dismissed with costs in favour of the first and second
respondents, such costs to include the
costs attendant upon the
employment of two counsel.
(f) The fifth respondent
(the Minister) shall bear his own costs.
______________
B H Mbha
Judge
of Appeal
APPEARANCES:
For
Appellant: Adv N Cassim SC,
with
Adv M Wesley, Adv J Bleazard and Adv I Phalane
Instructed
by: Malan Scholes Attorneys, Johannesburg
Claude
Reid Inc, Bloemfontein
For
First and Second Respondents
(cross-appellants):
Adv C M Eloff SC,
with
Adv J L Gildenhuys SC and Adv A Higgs
Instructed
by: Venter de Villiers Attorneys, Pretoria
Bezuidenhouts
Inc, Bloemfontein
For
Third to Sixth
Respondents:
Adv M P van der Merwe SC (Third respondent)
Instructed
by: The State Attorney, Pretoria
Not
participating in the appeal
For
Seventh Respondent: *
Instructed
by: The State Attorney, Pretoria
The
State Attorney, Bloemfontein
For
eighth respondent
(seventh
respondent in
the
cross-appeal): *
Instructed
by: Kopanong Shopping Centre (Pty) Ltd, Polokwane
Cited
as an historical party that did not participate in the court a quo
and is not participating in the appeal
For
ninth respondent
(eighth
respondent in
the
cross-appeal): *
Instructed
by: Minister of Public Works, Pretoria
Cited
as an historical party that did not participate in the court a quo
and is not participating in the appeal
For
Tenth Respondent: *
Instructed
by: T P Moloto & Company Inc, Benoni
Not
participating in the appeal
[1]
Section 22(4)
(b)
provides that if the Regional Manager (the RM) accepts the
application, the RM must, within 14 days from the date of
acceptance,
notify the applicant in writing ‘to consult in the
prescribed manner with the landowner, lawful occupier and any
interested
and affected party and include the result of the
consultation in the relevant environmental reports'.
[2]
In terms of s
96(1)
(b)
of the MPRDA, one of the provisions on the internal appeal process
and access to courts:
‘
(1) Any person whose rights or
legitimate expectations have been materially and adversely affected
or who is aggrieved by any
administrative decision in terms of this
Act may appeal within 30 days [of] becoming aware of such
administrative decision in
the prescribed manner to—
…
(b) the Minister, if it is an
administrative decision that was taken by the Director-General or
the designated agency …’
[3]
Bowring NO v
Vrededorp Properties CC and Another
[2007]
ZASCA 80
;
2007 (5) SA 391
(SCA) para 21.
[4]
See ss 2(b) and 3(1)-(2) of the
MPRDA.
[5]
The Minister who made the impugned
decision on 31 October 2016 was Mr Mosenbenzi Zwane. And he was the
Minister when the respondents
launched their review application in
January 2017. The current Minister is Mr Gwede Mantashe, who was
appointed in February 2018.
The high court set aside Minister
Zwane’s decision on 16 November 2018.
[6]
See s 22(4)
(b)
(op cit fn 1); and see reg 50(
f)
of the Mineral and
Petroleum Resource Development Regulations, GN R527 in
GG
26275 of 23-04-2004 (the
Regulations). Although regs 48-55 have subsequently been repealed,
with effect from 27 March 2020, reg
50
(f)
was still operative at the
relevant time. See the amendments published under GN R420 in
GG
43172 of 27-03-2020.
[7]
Regulation 49 concerns the contents
of the scoping report. Subregulation (3) provides that:
‘
The [RM] must evaluate the
scoping report and request the relevant Government departments and
organs of State, as the case may
be, to submit written comments on
the scoping report within 30 days from the days of the request.’
[8]
‘
Kgoshi’ is Setswana for
senior traditional leader, while ‘kgoshi kgolo’ refers
to the highest ranking leader
of a traditional community.
[9]
This letter was in fact the same as
the previous one, save for an additional bullet noting that the
information submitted by Samancor
was not sufficient.
[10]
Prior to an amendment to the
Regulations (See GN R420 in
GG
43172 of 27-03-2020)
reg 74 provided as follows, in relevant part:
‘
(1) Any person who appeals in
terms of section 96 of the Act against an administrative decision,
must within 30 days after he
or she has become aware of the or
should reasonably become aware of the administrative decision
concerned, lodge a written notice
of appeal with the
Director-General or the Minister, as the case may be.
(2) The notice of appeal must state
clearly—
(a)
the
actions appealed against; and
(b)
the
grounds on which the appeal is based.
(3) The appeal fee specified in
regulation 76(1)
(f)
must accompany a notice of appeal.
(4) The Director-General or the
Minister, as the case may be, may in his or her discretion and on
such terms and conditions as
he or she may decide, condone the late
noting of an appeal.
(5) After receipt of the notice of
appeal, the Director-General or the Minister, as the case may be,
must-
(a)
dispatch
copies thereof to—
(i) the person responsible for the
administrative decision concerned;
(ii) any other person, whose rights
may, in the opinion of the Director-General or the Minister, as the
case may be, be affected
by the outcome of the appeal; and
(b)
request
the persons contemplated in paragraph
(a)
to respond as provided for in subregulations (6) and (7).
(6) A person contemplated in
subregulation 5
(a)
(i) must, within 21 days from receipt of
the notice of appeal, submit to the Director-General or the
Minister, as the case may
be, written reasons for the administrative
decision appealed against.
(7) A person contemplated in
subregulation 5
(b)
(ii) must within 21 days from receipt of
the notice of appeal, submit to the Director-General or the
Minister, as the case may
be, a replying submission indicating-
(a)
the
extent and nature of his or her rights;
(b)
how
the outcome of the appeal may affect his or her rights; and
(c)
any
other information pertaining to the grounds as set out in the notice
of appeal.
(8) The Director-General or Minister,
as the case may be, must dispatch the documents contemplated in
subregulations (6) and (7)
to the appellant by registered post and
request him or her to respond thereto in writing within 21 days from
receipt thereof.
(9) The Director-General or the
Minister, as the case may be, must, within 30 days from the date of
receipt of the response contemplated
in subregulation (8), either-
(a)
confirm
the administrative decision concerned;
(b)
set
aside the administrative decision concerned;
(c)
amend
the administrative decision concerned; or
(d)
substitute
any other administrative decision for the administrative decision
concerned.’
[11]
Section 16(2) of
the MPRDA sets out the requirements for accepting an application for
a prospecting right. In terms of s 16(2)
(c)
,
an application may only be accepted if ‘no prior application
for a prospecting right, mining right, mining permit or retention
permit has been accepted for the same mineral on the same land and
which remains to be granted or refused’. In such event,
according to s 16(3), the RM must notify the applicant of that fact
and return the application to the applicant.
[12]
The respondents
claimed that the measures adopted by Samancor in its EMPR to
mitigate harm that might otherwise occur from mining
are inadequate.
This ground was not pursued in the court a quo. There was also an
allegation that the Minister delayed unreasonably
in processing
Samancor's mining right application, and that this amounted to an
'unreasonable reservation, sterilization or banking
of the rights to
chrome in respect of the properties in favour of Samancor', which
the respondents alleged Samancor had 'associated
itself'. But there
was no evidence to suggest that Samancor was complicit in the
Departments' delays in processing its mining
right application.
[13]
'Interested and
affected person' means a natural or juristic person or an
association of persons with
a
direct interest
in the proposed or existing operation or
who
may be affected
by the existing operation.'
[14]
See chapter 1 of the Regulations.
[15]
See the
Traditional Leadership and
Governance Framework Act 41 of 2003
, read together with the Limpopo
Traditional Leadership and Institutions Act 6 of 2005.
[16]
Minister of Home Affairs and
Others v Scalabrini Centre and Others
[2013]
ZASCA 134
; 2013 (6) SA 421 (SCA) para 43.
[17]
Ibid paras 43-44.
[18]
Bengwenyama Minerals (Pty) Ltd and
Others v Genorah Resources (Pty) Ltd and Others
[2010]
ZACC 26
;
2011 (4) SA 113
(CC),
especially para 62
et seq
.
[19]
Maledu
op
cit fn 8, coincidentally also from para 62.
[20]
Maledu and
Others v Itereleng Bakgatla Mineral Resources (Pty) Ltd and Another
[2018] ZACC 41
;
2019 (2) SA 1
(CC) paras 85-93.
[21]
Section 54(6) and
(7) of the MPRDA provides that:
‘
(6) If the
Regional Manager determines that the failure of the parties to reach
an agreement or to resolve the dispute is due
to the fault of the
holder of the ... prospecting right [or] mining right ... the
Regional Manager may in writing prohibit such
holder from commencing
or
continuing
with prospecting or mining operations ... until such time as the
dispute has been resolved by arbitration or by a competent court;
(7) The owner or lawful occupier of
land on which ... prospecting or mining operations will be conducted
must notify the relevant
Regional Manager if that owner or occupier
has suffered or is likely to suffer any loss or damage as a result
of the prospecting
or mining operation ...' (Emphasis supplied.)
[22]
In the Department's response to
Samancor's appeal, the RM sought tostyle the letter as being a
directive under s 39, read
with regulation 50. However, this
ex
post facto
attempt to
alter the basis on which he issued the letter is impermissible.
Section
39(5) of the MPRDA states as follows:
‘
The Minister may call for
additional information from the person contemplated in subsection
(1) or (2) and may direct that the
environmental management
programme or the environmental management plan in question be
adjusted in such way as the Minister may
require.’
[23]
Regulations 49(3) to (5) provide
that:
'(3) The Regional Manager must
evaluate the scoping report and request the relevant Government
departments and organs of State
... to submit written comments on
the scoping report within 30 days from the date of the request.
(4) The Regional Manager may request
the applicant to forward specific and additional information or to
conduct further investigations
regarding the scoping report ...
(5) The Regional Manager must collate
and forward all comments contemplated in subregulation (3) to the
applicant who must address
and incorporate such comments in the
environmental impact assessment report and environmental management
programme.
[24]
See
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs and
Tourism and Others
[2004] ZACC 15
;
2004
(4) SA 490
(CC) para 44.