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[1] The applicant filed an application with the Department of Mineral Resources
and Energy (DMRE) for the approval of an integrated environmental
authorisation (IEA) for six projects at its mine located on the farm Beeshoek
in the district of Postmasburg, Northern Cape. Five were approved and one
was not.This is a review application pertaining to the exclusion of project 2.
[2] The applicant mine is located approximately 65 km south of K humani Mine
near the town of Postmasburg. It is an Iron Ore Production mine which has
been productive since the mid-1960s. Over the years strategic infrastructure
initiatives have been implemented to enhance operational efficiency, including
the establishment of a comprehensive washing and screening plant in 1975
and the introduction of a jig plant for the beneficiation of off-grade ore in 2001.
[3] In 1999 Assmang inaugurated Beeshoek South, a new opencast mine to meet
increased production demands. The operational focus at Beeshoek Mine
involves opencast iron ore mining with a depth reaching approximately 140
metres. Assmang holds new order rights for high -grade hematite Iron Ore
Deposits at Beeshoek Mine in terms of the MPRDA. The current mining
method involve s an opencast operation with five active pits. The mine is
divided into a Northern mining area and the Southern mining area. The South
mine features large opencast pits, waste rock dumps (WRDs), the village
opencast pit, its associated WRDs and a crushing and screening area feeding
into the Iron Ore Beneficiation Plant at the North mine.
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BACKGROUND FACTS
[4] On 12 February 2021 Assmang submitted an IEA application for the Beeshoek
Mine to the DMRE. The application was amended when the DMRE requested
the applicant to include the proposed Railway Line Project and a subsequent
new application was submitted on 06 April 2021 and acknowledged by the
DMRE on 04 August 2021.
[5] Through the proposed projects and amendments, the Beeshoek Mine sought
to optimise mineral extraction and to enhance environmental management
and rehabilitation efforts. It formulated six amendments . It sought to obtain
amendments to its Environmental Management Programme (“EMPr”). Six
projects were identified.
5.1 Project 1 – Specific demarcation or Run of Mine (ROM) stockpiles:
This includes precise demarcation on the South mine to optimise
management and environmental compliance.
5.2 Project 2 – Design amendments to WRDs: Proposed changes involve
height increases and allowance for final slope, which result an
extension of footprints.
5.3 Project 3 – Expansion of Mining Operations: This includes increasing
the footprint of opencast pit areas and initiating detrital mining, subject
to EIAs and optimisations.
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5.4 Project 4 – Beneficiation Plant Optimisation: The development of a jig
plant and Wet High -Intensity Magnetic Separation Plant aimed at
enhancing the beneficiation of discard, low-grade iron ore and slimes.
5.5 Project 5 – Certain Water Management Infrastructure: A new surface
water dam will be constructed to support these projects.
5.6 Project 6 – Infrastructure Development: The establishment of
necessary infrastructure such as powerlines, roads, pipelines and
stormwater management systems will support the above initiatives
ensuring sustainable and optimised mining operations.
[6] The aforesaid application was considered by the first respondent and on 20
July 2023 he notified the applicant of his decision as set out in a document
annexed as Annexure FA1. On 25 July 2023 a revised IEA was issued and
was provided to the applicant.
[7] The design amendments that were proposed in Project 2 to waste rock
dumps(WRDs) had been excluded, but no reasons for the exclusion were
provided.
[8] The applicant was of the view that the first respondent had , due to an
oversight, failed to deal with Project 2 and enquiries to confirm this were made
in the period up to 21 September 2023, with no response being received from
the first respondent.
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[9] On 21 September 2023 the applicant lodged an appeal with the second
respondent in terms of section 43 of NEMA. On 25 November 2023 the
second respondent dismissed the appeal. In terms of section 47 CB(1) the
Minister is precluded from entertaining an appeal if it has been lodged later
than 30 (thirty) days after the date of the decision appealed against. The
Minister, relying on this section, stated that he could not entertain the appeal
and it was consequently dismissed.
[10] On 24 May 2024 the applicant launched the review proceedings which serve
before this court.
THE NOTICE OF MOTION
[11] The applicant seeks the following relief:
1. Condoning the late filing of the application in terms of section 9 of the
Promotion of Administrative Justice Act, 3 of 2000 (PAJA).
2. Directing that the applicant be exempted from the obligation to
exhaust any internal remedy, as provided for in section 7(2)(c) of
PAJA.
3. That the decision of the first respondent to exclude Project 2 in the
applicant’s Integrated Environmental Authorisation in terms of the
National Environmental Management Act, 1998 (Act 107 of 1998 as
amended) (“NEMA”) and the National Environmental Manage ment:
Waste Act, 2008 (Act 59 of 2008 as amended), for a mining right and
related infrastructural activities on Portions 0 and 1 of the farm
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Beeshoek No. 448 and Portion 4 of the farm Olyn Fontein No. 475,
which properties are situated in the Magisterial District of
Postmasburg in the Northern Cape Province, granted to the applicant
in terms of Regulation 20(1)(a) and 24(1)(b) of the Environment
Impact Assessment Regulations, 2014 (GNR993 in GG3303 of
December 2014) (“the decision”), be reviewed and set aside in terms
of section 8 of PAJA.
4. Alternatively to paragraph 3, that the decision be declared to be
inconsistent with the principle of legality as enshrined in section 1(c)
of the Constitution.
5. Remitting the applicant’s IEA application to the first respondent for
reconsideration of the decision within a period of 30 (thirty) days.
6. Ordering those respondents who oppose the application to pay the
costs jointly and severally, such costs to include the costs of two
counsel and taxed on Scale C.
[12] On 11 November 2024, pursuant to the institution of the current review
proceedings, the first respondent delivered a rule 53 record which contains no
reasons for the exclusion of Project 2.
[13] On 25 November 2024 the applicant filed its supplementary founding affidavit
as envisaged by rule 53(4).
[14] On 21 January 2025, a few days before the answering affidavit was due, the
first respondent delivered an additional record in terms of rule 53, consisting
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of a single document namely: “Reasons to exclude Project 2 from the
Integrated Environmental Authorisation issued on 20 June 2023”, which
document is dated 05 June 2024.
[15] In its answering affidavit, the first respondent merely refers to the failure to
disclose the aforesaid reasons as part of the original record as an oversight.
On 24 February 2025 the applicant delivered a further supplementary founding
affidavit due to the extended record.
[16] On 20 June 2025 the applicant delivered its replying affidavit. The replying
affidavit is out of time and condonation was sought. The first respondent
opposes the condonation application.
[17] At the commencement of the hearing, the issue of condonation for late filing
of the replying affidavit was raised. Although the applicant in its replying
affidavit rebutted each of the grounds on which Project 2 was ostensibly
refused, as set out in the reasons dated 05 June 2024, the court was advised
that the applicant would rely on the founding papers, rather than on the
replying affidavit.
EXHAUSTING INTERNAL REMEDIES
[18] In terms of section 7(2) of PAJA, no court shall review an administrative action
in terms of PAJA unless any internal remedy provided for in any other law has
first been exhausted. This is however subject to the court’s power in terms of
section 7(2)(c), to exempt a party from exhausting internal remedies. There
are however two requirements, namely that there must be exceptional
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circumstances and the court must deem exemption to be in the interests of
justice.
[19] In Koyabe and Others v Minister of Home Affairs and Others (Lawyers for
Human Rights as Amicus Curiae) at paragraphs [34] to [49], the Constitutional
Court held that an aggrieved party must take reasonable steps to exhaust
internal remedies in view of the rationale of internal remedies being a valuable
and necessary requirement of our law.
[20] The applicant seeks condonation and exemption in terms of sec 7(2) and sec
9(3) of PAJA
EXCEPTIONAL CIRCUMSTANCES
[21] The applicant’s delay in lodging its appeal arose from its bona fide attempts
to obtain clarity from the DMRE regarding the unexplained exclusion of
reasons for Project 2.
[22] The applicant lodged its appeal, but 37 days late. The applicant purported to
exercise an internal remedy but was precluded from proceeding with it due to
a statutory bar contained in section 47CB(2) of NEMA. This provision contains
an inflexible 30 day bar on condonation. It is an u nusual provision which
precludes the Minister from considering late appeals in mining related matters,
regardless of merit. These combined considerations to my mind do constitute
exceptional circumstances justifying an exemption. This would particularly be
so where there are good prospects of success in the review application and
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where exemption would therefore be in the interests of justice (sec 9(3) of
PAJA.
[23] The respondents referred to authorities which question whether the interests
of justice are linked to the prospects of success in the review application. In
principle, the prospects of success are inherent in consideration of the
interests of justice, and the exclusion of this consideration cannot, unless there
are exceptional circumstances, be stated as a matter of principle.
[24] I am satisfied that the applicant has made out a case for condonation and
failing tha t,for exemption from exercising its internal remedies. Having so
decided, this court may engage its review jurisdicition.
GROUNDS OF REVIEW
[25] The primary ground of review is the absence of reasons for the refusal of
Project 2.
[26] The IEA that was issued by the first respondent, approving all the projects but
not referring expressly to Project 2, is a composite document . The section
headed “Reasons” provide s reasons why the five projects were approved.
The only indication that Project 2 was not approved appears obliquely in
paragraphs 3.18 and 3.18.1.
[27] These read:
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“3.18 Backfilling must be undertaken at all times, the holder of this IEA must
provide a quarterly report on backfilling progress. Care must be taken
to ensure that the material and soil required for backfilling are free of
contamination from hydrocarbons.
3.18.1 Amendments to the design of existing Waste Rock Dumps
in terms of the increase in heights, and allowance for final
slope, which will result in extension of footprints are not
authorised. The existing pits and excavations must be
utilised for backfilling to minimise further environmental
degradation.”
[28] The sentiments expressed in paragraph 3.18.1 are repeated in paragraph 8
of the reasons for the IEA. The y do not provide a reason for the refusal of
Project 2. During argument counsel for the first respondent and the third
respondent referred to the aforesaid paragraph 8 as a contemporaneous,
though cryptic, expression of reasons for refusal. This cannot be accepted.
No reasons specific to Project 2 were provided.
[29] In the answering affidavit the first respondent purports to suggest that the
reasons dated 05 June 2024 were part of the original record that predated the
decision of 20 July 2023. This proposition is rejected. The reasons are dated
05 June 2024 at the top of the document. The date is repeated at the end of
the document where the date is written in manuscript and signed by the first
respondent. It is therefore a document dated 05 June 2024, while the decision
impugned in these proceedings is a decision of 20 July 2023. These reasons
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were therefore clearly created ex post facto to explain why Project 2 had not
been approved.
THE ABSENCE OF CONTEMPORANEOUS REASONS
[30] The review application is a review in terms of PAJA, as the decision in
question meets with the requirements of administrative action as defined in
section 1 of PAJA. The constitutional right to fair administrative action in
section 33(2) of the Constitu tion includes the right to give reasons for an
administrative action. This right is dealt with in section 5(1) of PAJA.
[31] The need for administrative action to be supported by cogent reasons is to
avoid arbitrary decisions that adversely affect members of society. A decision
without reasons is arbitrary (see National Lotteries Board v South African
Education and Environment Project [2011] ZASCA 154, at para [27]).
[32] The minimum threshold for the valid exercise of public power is rationality.This
is an incident of the rule of law as referred to in sec 1( c ) of the Constitution.
The grounds of review set out in sections 5 and 6 of PAJA are all instances of
irrational conduct, which the law will not countenance (see Commissioner,
South African Police Service v Maimela 2003 (5) SA 480 (T) at 486 F – H;
Mobile Telephone Networks (Pty) Ltd v Independent Communications
Authority of South Africa, in re Vodacom (Pty) Ltd v Chairperson of the
Independent Communications Authority of South Africa [2014] 3 All SA
171 (GJ) (31 March 2014).
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[33] Cleaver J, in Jicama 17 (Pty) Ltd v West Coast District Municipality 2006
(1) SA 116 (C) at paragraph [11], cited with approval a dictum in R v
Westminster City Council, reading:
“The cases emphasise that the purpose of reasons is to inform the parties why
they have won or lost and enable them to assess whether they have any
ground for challenging an adverse decision. To permit wholesale amendment
or reversal of the stated reasons is inimical to this purpose. Moreover, not
only does it encourage a sloppy approach by the decision-maker, but it gives
rise to potential practical difficulties. In the present case it was not, but in
many cases it might be, suggested that the alleged true reasons were in fact
second thoughts designed to remedy an otherwise fatal error exposed by the
judicial review proceedings. That would lead to applications to cross-examine
and possibly for further discovery, both of which are, while permissible in
judicial review proceedings, generally regarded as inappropriate. Hearings
would be made longer and more expensive.”
[34] In National Energy Regulator of South African and Another v PG Group
(Pty) Limited and Others 2019 ZACC 28 the Constitutional Court, citing the
aforesaid National Lotteries case, stated the following at paragraph [39]:
“It is true that reasons formulated after a decision has been made cannot be
relied upon to render a decision rational, reasonable and lawful.”
[35] The reasons provided by the first respondent dated 05 June 2024 were
created ex post facto and cannot support the decision of 20 July 2023. In light
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thereof, it is not necessary to del ve into the cogency of the reasons so
provided.
[36] The applicant has in its replying affidavit dealt with each of the grounds of
refusal and, although this affidavit was not referred to during argument, it
meets each ground of refusal head-on.
[37] It follows from the aforesaid that the first respondent’s decision not to approve
Project 2 was without reason, or without cogent reasons. It falls to be reviewed
and set aside in terms of sec 5(3) and 6(2)(e)(vi) of PAJA.
REMEDY
[38] During argument it was common cause that, if the decision of the first
respondent pertaining to Project 2 were to be reviewed and set aside, that the
matter should be remitted to the administrative authority and that the matter
should be dealt with de novo. Counsel for the first respondent suggested a 60
day period to cater for requests for further particulars and expert reports.This
would be just and equitable
CONCLUSION
[39] The review therefore succeeds and, in the premises, the following order is
made:
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1. Condonation is granted for the late filing of the application for review
in terms of section 9 of the Promotion of Administrative Justice Act, 3
of 2000 (“PAJA”).
2. The applicant is exempted from the obligation to exhaust internal
remedies in terms of section 7(2)(c) of PAJA.
3. The decision of the first respondent to exclude Project 2 in the
applicant’s integrated environmental authorisation , in terms of the
National Environmental Management Act, 1998 (Act 107 of 1998 as
amended) (NEMA) and the National Environmental Management:
Waste Act, 2008 (Act 59 of 2008 as amended), for a mining right and
related infrastructura l activities on Portions 0 and 1 of the farm
Beeshoek No. 448 and Portion 4 of the farm Olyn Fontein No. 475,
which properties are situated in the Magisterial Distri ct of
Postmasburg in the Northern Cape Province granted to the applicant
in terms of Regulations 20(1)(a) and 24(1)(b) of the Environment
Impact Assessment Regulations, is reviewed and set aside in terms
of section 8 of PAJA.
4. An order is granted remitting the applicant’s IEA application to the first
respondent for reconsideration of its decision pertaining to Project 2,
for reconsideration within a period of 60 (sixty) days.
5. The first and third respondents are ordered to pay the costs of this
application jointly and severally, such costs to include the costs of two
counsel, on Scale C.