IN THE NORTH GAUTENG HIGH COURT, PRETORIA
(REPUBLIC OF SOUTH AFRICA)
CASE NO. 56012/10
In the matter between:
MPHOHLELE JAMES SHIBURI
First Applicant
ISAAC MAKGALAMELE
Second Applicant
ROSELINASHIBURI
Third Applicant
ELIZABETH MOSIMAKHWINANA
Fourth Applicant
and
POTGIETERSRUSTPLATINUMS LIMITED
THE MINISTER OF WATER AND
ENVIRONMENTAL AFFAIRS
First Respondent
Second Respondent
THE MINISTER OF MINERAL RESOURCES
Third Respondent
THE MINISTER OF RURAL DEVELOPMENT
AND LAND REFORM
Fourth Respondent
THE MEC FOR ECONOMIC DEVELOPMENT,
ENVIRONMENT AND TOURISM, LIMPOPO
Fifth Respondent
SEKURUWE (ASSOCIATION INCORPORATED
IN TERMS OF SECTION 21)
Sixth Respondent
APPLICANTS’ HEADS OF ARGUMENT
Table of Contents
Introduction
2
Urgency and Locus Standi
5
Non-compliance with regulation 69(5) of the MPRDA Regulations
9
Non-compliance with NEMA and Notices R386 and R387
12
Non-compliance with NEMA and Notices R544 and R545
26
Relief sought
28
2
INTRODUCTION
1
The applicants are all members of the Sekuruwe community. The community
resides in a village known as the Sekuruwe village, located on the farm
Blinkwater 820 LR (‘Blinkwater’). Approximately 1500 adults live in the village.
Many of the residents are migrant workers who return home only on weekends
and holidays.1 The villagers do not only reside on the farm; their cattle graze on
the farm and they conduct various form of subsistence farming in the farm.2
2
The First Respondent is Potgietersrust Platinums Limited.
It owns and
operates the Mogalakwena Platinum Mine on properties adjacent to Blinkwater
and holds a mining right permitting it do so.
3
The First Respondent has been granted a lease by the Minister of Rural
Development and Land Reform over a substantial portion of the community’s
land on Blinkwater. Pursuant to that lease, the First Respondent has been
engaging in the construction of a tailings/slimes dam on Blinkwater which at
present has a footprint of 280 hectares. It has also been pumping slimes and
tailings (waste from its mining activities) into the dam. By the time of filing the
answering affidavit it had pumped 1.6 million tons of waste into the dam on
Blinkwater.3
1
Founding affidavit, p 7, para 3
2
Founding affidavit, p 8, paras 4-5
3
Answering affidavit, p 321, para 18
3
4
Members of the Sekuruwe community have launched a review application
seeking to challenge the Minister’s decision to grant the First Respondent the
lease over the community’s land. That application is pending before this Court.
The Minister and the present First Respondent are out of time with their
answering affidavits in that matter.
5
The present urgent application, however, has a different primary focus.
It
concerns the question of whether, even assuming the validity of the lease
agreement, the First Respondent has obtained the necessary authorisation in
terms of the Mineral and Petroleum Resources Development Act 28 of 2002
(MPRDA) and National Environmental Management Act 107 of 1998 (NEMA)
for the construction and operation of the tailings dam on Blinkwater.
6
As we explain in more detail blow, it is common cause between the parties that:
6.1
The First Respondent has not obtained the required written authorisation
of the Minister of Mineral and Energy Affairs in terms of MPRDA
Regulation 69(5) for the construction of the dam on the banks of the
Blinkwater wetland.
6.2
The First Respondent has not obtained the required environmental
authorisation in terms of NEMA for various listed activities contained in
Government Notices R386 and R387.
6.3
The First Respondent has not obtained the required environmental
authorisation in terms of NEMA for various listed activities contained in
Government Notices R544 and R545.
4
7
In the circumstances, the Applicants seek appropriate relief from this Court
interdicting the First Respondent from further constructing the tailings dam and
pumping waste into the dam unless and until it has obtained the required
authorisations.
8
Though the papers in his matter are relatively lengthy, the issues as they have
crystallised in light of the exchange of papers are narrow. In these heads of
argument we accordingly address the following issues in turn:
8.1
Urgency and locus standi
8.2
The First Respondent’s non-compliance with MPRDA Regulation 69(5);
8.3
The First Respondent’s non-compliance with NEMA read with Notices
R386 and R387;
8.4
The First Respondent’s non-compliance with NEMA read with Notices
R544 and R545; and
8.5
The relief sought
5
URGENCY AND LOCUS STANDI
Urgency
9
This application was launched on an urgent basis on 29 September 2010.
Ultimately, following discussions between the parties and a meeting with the
Deputy Judge President, a timetable was agreed for the filing of papers and the
matter received a special allocation for 26 November 2010.
10
The First Respondent contends that “this application is not urgent”.4 This is
despite the fact that, on these papers, the following is common cause:
“The dumping of tailings in the dam on Blinkwater will have irreversible
consequences if it is not stopped. The land will be buried under
millions of tons of mine waste that will render it totally unusable for
agricultural or any other purposes. The land will be totally sterilised.”5
and
“[T]he dumping of the tailings and other mining waste – unlike the
building of the dam – would cause irreversible damage to the
environment on Blinkwater (and wider) and would render the land
unsuitable for a very, very long time for the cultivation of crops and
grazing (which is what the community has used the applicable portion
of Blinkwater for, for many years). It would make it impossible forever
for us to reclaim our ancestral lands and provide for the subsistence of
our families from the land.” 6
11
We submit that on these facts alone, the application is self-evidently urgent.
4
Answering affidavit, p 316, para 9
5
Founding affidavit, p 19, para 25. Not denied in answer – see answering affidavit, p 355, para 72.
6
Founding affidavit, p 22, para 31. Not denied in answer – see answering affidavit, p 359, para 78.
6
12
All that remains then is the question of whether the urgency was self-created in
that the Applicants ought to have approached this Court sooner.
The
Applicants cite various factors accounting for the timing of the present
application, including that:
12.1 It had only recently become clear that that the First Respondent would
start dumping tailings despite the pending review matter;7
12.2 The Applicants’ attempts to resolve the environmental issues via the
Provincial Department of Environment;8
12.3 The inability of the applicants to obtain legal assistance due to a lack of
resources;9 and
12.4 The legal uncertainty concerning the relationship between the MPRDA
and NEMA, which uncertainty was only resolved by the judgment of the
Full Bench of Western Cape High Court in the Maccsand10 case
delivered on 20 August 2010;11
12.5 The attempts by the Applicants thereafter to resolve this matter by
means of correspondence with the First Respondent.12
13
We submit that, in the circumstances, the Applicants have given a more than
adequate explanation for the timing of this present application. In any event,
7
Founding affidavit, p 21, para 30
8
Founding affidavit, p 27, para 42
9
Founding affidavit, p 27, para 43
10
City of Cape Town v Maccsand (Pty) Ltd and Others 2010 (6) SA 63 (WCC)
11
Founding affidavit, pp 28-9, paras 46 - 48
12
Founding affidavit, pp 29-30, paras 48 - 51
7
and critically, the First Respondent has filed a full answering affidavit in the time
period agreed between the parties. It does not suggest that it has suffered any
prejudice whatsoever by virtue of the shortened time-periods.13
14
Finally, we point out that lack of urgency or self-created urgency is not a basis
for an application to be dismissed. It if only ever a basis for an application to be
struck from the roll, meaning it can then be re-enrolled in the ordinary course.14
Doing so in this case – when full pleadings have been exchanged and when a
special allocation has been granted – would not be in the interests of justice. It
would simply mean that the matter has to be re-enrolled in three or four months
time in front of a new judge. All the while, the First Respondent’s dumping of
tailings would continue to occur.
15
The First Respondent’s point in limine therefore falls to be dismissed.
Locus standi
16
The Applicants approach this Court on various bases – including on their own
behalf, on behalf of the Sekuruwe community and in the public interest. 15
17
The First Respondent takes issue with the right of the Applicants to act on
behalf of the Sekuruwe community.16
13
See Commissioner, South African Revenue Service v Hawker Air Services (Pty) Ltd 2006 (4) SA
292 (SCA) at para 10
14
Commissioner, South African Revenue Service v Hawker Air Services (Pty) Ltd 2006 (4) SA 292
(SCA) at para 9
15
Founding affidavit, pp 9 – 10, paras 7 - 9
16
Answering Affidavit, pp 348-350, para 57
8
18
However, given that the First Respondent does not take issue with the
Applicants’ right to approach this Court in their own interest and in the public
interest, there is plainly the requisite locus standi.
9
THE FAILURE of THE FIRST RESPONDENT TO COMPLY WITH REGULATION
69 OF THE MPRDA REGULATIONS
19
On Blinkwater, there is a wetland which produces groundwater that follows the
course of the river to the dam of the Sekuruwe community. The dam is an
important source of water for livestock and human consumption. Water from
the dam is also important for the Zionist and traditional healers healing the sick,
particularly for illnesses that require water coming from the ground naturally.17
20
Regulation 69 of the MPRDA Regulations deals with the disposal of waste
material. Regulation 69(5) provides:
“No sand dump or slimes dam shall be established on the bank of any
stream, river, dam, pan, wetland or lake without written permission of
the Minister [of Minerals and Energy] in consultation with the relevant
Government department and upon such conditions as he or she may
determine and as approved in the environmental management
programme or environmental management plan, as the case may
be.”18
21
In the founding papers, the applicants indicated that they were unaware that
the Minister of Minerals and Energy had given any written permission under the
MPRDA Regulations for the establishment of the slimes dam on the bank of the
wetland on Blinkwater.19
22
In answer, the First Respondent does not deny that it has established the
slimes dam on the bank of the wetland on Blinkwater. Nor does the First
17
Founding affidavit, p 44, para 83
18
Emphasis added.
19
Founding affidavit, pp 39 – 40, para 71
10
Respondent
state
or
even
suggest
that
the
Minister
of
Minerals and Energy has provided the required written permission. Instead it
states simply:
“With regard to the allegations in paragraph 71, I respectfully refer to
what is set out above in respect of the seasonal wetland on the farm
Blinkwater.”20
23
The only other discussion of this issue in the answering affidavit is as follows:
“The wetland referred to is seasonal and will not be immediately
impacted on by the Blinkwater Tailings Dam. The First Respondent is
nevertheless in consultation with the relevant authorities in this regard.
The allegations made in this regard are irrelevant, inaccurate and
emotive. They are therefore denied.”
24
It is therefore plain that the First Respondent does not have the requisite written
authorisation and that the First Respondent has provided no substantive
answer to the Applicants’ complaint about non-compliance with Regulation
69(5). The regulation does not require approval from the Minister only where or
when the wetland will “be impacted on” by the slimes dam. Rather, it is quite
unambiguous in prohibiting the establishment of a slimes dam on the banks of
any wetland without the written permission of the Minister.
25
The First Respondent’s establishment of the slimes dam is unlawful on this
basis alone. Indeed, the First Respondent has committed a criminal offence in
this regard given that section 98(a)(viii) of the MPRDA provides that a person is
a guilty of an offence if he fails to comply with the provisions of “this Act” and
“this Act” is turn defined as including the MPRDA regulations.
20
Answering affidavit, p 373, para 105.3
11
26
The First Respondent cannot be permitted to continue disposing of its waste in
the slimes dam on Blinkwater when that slimes dam was unlawfully
constructed. The Applicants are therefore entitled to an order interdicting the
First Respondent from doing so unless and until it has obtained the necessary
written permission in terms of Regulation 69(5) of the MPRDA Regulations.
27
On this basis alone then, the application ought to succeed.
12
THE FAILURE of THE FIRST RESPONDENT TO COMPLY WITH NEMA READ
WITH NOTICES R386 AND R387
NEMA’s requirement of environmental authorisation
28
NEMA empowers the Minister of Environmental Affairs and Tourism and every
MEC responsible for environmental affairs to identify activities which may not
commence without environmental authorisation. In this regard s 24(2) of NEMA
provides:
‘The Minister, and every MEC with the concurrence of the Minister,
may identify –
(a) activities which may not commence without environmental
authorisation from the competent authority”
29
In terms of s 24D, the listed activities must be published:
‘(1) The Minister or MEC concerned, as the case may be, must
publish in the relevant Gazette a notice containing a list of(a)
activities or areas identified in terms of section 24 (2); and
(b)
competent authorities identified in terms of section 24C.
(2) The notice referred to in subsection (1) must specify the date on
which the list is to come into effect.”
30
In terms of s 24F(1) of NEMA, no person may commence a listed activity
without an environmental authorisation and under s 24F(2) commencement of a
listed activity without an environmental authorisation is an offence. The relevant
parts of s 24F provide that:
“(1)
Notwithstanding any other Act, no person may(a) commence an activity listed or specified in terms of section
24(2)(a) or (b) unless the competent authority or the
Minister of Minerals and Energy, as the case may be, has
granted an environmental authorisation for the activity; or
13
(b)
…
(2) It is an offence for any person to fail to comply with or to
contravene(a)
31
subsection (1)(a);”
The NEMA Environmental Impact Assessment Regulations in force when the
construction of the Dam began set out a step-by-step process that had to be
followed when an application for an environmental authorisation is made and
considered.
31.1 There were different kinds of assessments, namely a basic assessment,
scoping and an environmental impact assessment.
31.2 Even for a basic assessment, there were certain minimum steps, such as
a public participation process as set out in regulation 56 (regulation
22(a)) and other procedural requirements set out in regulation 22, as well
as the requirements for the report on the basic assessment set out in
regulation 23.
31.3 The competent authority (i.e. the decision-maker) had to grant or refuse
the application on the basis of the basic assessment report alone
(regulation 26(1)). However, if the competent authority was unable to
decide the application on the basic assessment report alone, the
competent authority had to request additional information, reports or the
consideration of further alternatives.
31.4 When considering any application for environmental authorisation,
whether in terms of part 2 or part 3 of chapter 3 of the EIA regulations,
the competent authority had to take into account all relevant factors,
14
including the environmental impacts or environmental degradation of the
proposed activity, any mitigation measures that could be taken,
alternatives to the proposed activity and any comments received from
organs of state that had jurisdiction over any aspect of the activity which
is the subject of the application.
The listed activities and the First Respondent’s response
32
Until 2 August 2010, the listed activities in force were those to be found in the
lists that appear in Government Notices R386 and R387. A number of the
listed activities that appear on these lists are set out and quoted in the founding
affidavit.21 By way of summary, they cover, for example:
32.1 The construction of facilities or infrastructure for the bulk transportation of
sewage and water;22
32.2 The storage of waste;23
32.3 The transformation of undeveloped or vacant land to commercial,
industrial or institutional use;24 and
32.4 Any development activity where the total of the developed area is 20
hectares or more;25
21
Founding affidavit, pp 32 – 35, paras 56 - 57
22
Item 1(k) in Notice R386
23
Item 1(o) in Notice R386 and items 1(f) and 1(g) in Notice R387
24
Item 16 in Notice R386
25
Item 2 in Notice R387
15
32.5 The construction of a dam of certain specifications.26
33
In the founding affidavit, the applicants state that the activities carried out by the
Mine fall under various listed activities set out in the two notices.27 This is not
denied at any stage by First Respondent and must therefore be taken to be
admitted.28
34
The First Respondent does not suggest that it has obtained the necessary
authorisation in terms of NEMA for the activities concerned.
Instead, its
defences on this issue are twofold:
34.1 It contends that it does not require environmental authorisation in terms
of NEMA for mining activities or activities incidental thereto in a mining
area and that the approval of its Environmental Management Programme
in terms of the Minerals Act is sufficient.29
34.2 It contends that the Applicants’ reliance on Notices R386 and R387 is
misplaced given that they were repealed with effect from 2 August 2010
and replaced with new lists of listed activities.30
35
We submit that neither argument is sustainable and deal with each in turn.
26
Item 6 in Notice R387
27
Founding affidavit, p 31, para 55
Plascon-Evans Paints v Van Riebeeck Paints 1984 (3) SA 623 (AD) at 634G – I; Wightman t/a JW
Construction v Headfour (Pty) Ltd and Another 2008 (3) SA 371 (SCA) at 375G.
28
29
Answering affidavit, pp 323-324, para 25.1
30
Answering affidavit, p 324, para 25.3
16
The contention that the NEMA does not apply to mining and related activities
36
The contention by the First Respondent that it does not require environmental
authorisation in terms of NEMA for mining activities or activities incidental
thereto in a mining area is fatally undermined by the express provisions of
NEMA itself.
36.1 Section 24F(1)(a) of NEMA provides that “Notwithstanding any other Act”
no person may commence a listed activity without environmental
authorisation under NEMA.
36.2 Section 24(8)(a) of NEMA, which was inserted by s 2 of the National
Environmental Management Amendment Act 62 of 2008 (i.e. after the
enactment of the MPRDA) and which commenced on 1 May 2009,
expressly provides that authorisations or permits obtained under any
other law (such as the MPRDA) for an activity listed in terms of NEMA,
do not absolve the applicant from obtaining authorisation under NEMA.
Section 24(8)(a) states:
“Authorisations obtained under any other law for an activity listed or
specified in terms of this Act does not absolve the applicant from
obtaining authorisation under this Act unless an authorisation has
been granted in the manner contemplated in section 24L.”31
36.3 Sections 24K and 24L of NEMA, which were also introduced by Act 62 of
2008, also expressly contemplate that other legislation may also require
an environmental authorisation.
31The
proviso to s 24(8)(a), relating to integrated environmental authorisations in terms of s 24L, does
not apply since no such authorisation has been issued by the competent authority under NEMA.
17
36.4 Section 24K(1) allows the National Environment Minister or a MEC
responsible for administering environmental affairs to consult with any
organ of state responsible for administering “legislation relating to any
aspect of an activity that also requires environmental authorisation under
[NEMA]” in order to coordinate the respective requirements of such
legislation and to avoid duplication.
Under s 24K(3) the competent
authority may, when considering an application for environmental
authorisation under NEMA that “also requires authorisation in terms of
other legislation take account of … any process authorised under that
legislation as adequate for meeting the requirements of Chapter 5 of
[NEMA].”
36.5 Section 24L(1) provides that if the carrying out of a listed activity
contemplated in s 24 of NEMA “is also regulated in terms of another law”
the respective authorities may exercise their powers jointly by, amongst
other
things,
Furthermore,
issuing
a
an
competent
integrated
authority
environmental
empowered
authorisation.
to
issue
an
environmental authorisation under NEMA may regard an authorisation in
terms of any other legislation that meets the requirements of NEMA to be
an environmental authorisation in terms of NEMA (s 24L(4)).
37
We submit that these provisions make it clear that:
37.1 Parliament recognises that activities regulated by other legislation may
also require environmental authorisation under NEMA.
18
37.2 The requirement for environmental authorisation in terms of NEMA in
respect of listed activities is not removed merely because the activity “is
also regulated in terms of another law” or “also requires authorisation in
terms of other legislation”. This is so even where the other legislation
meets all the requirements stipulated in NEMA (s 24L(4)) or the other
authorisation is required under a “specific environmental management
Act” (s 24L(1)).
38
This much was recognised by the Full Bench of the Western Cape High Court
in the Maccsand decision.32 After considering the provisions of NEMA just
cited, Davis J (Baartman J concurring) held as follows in considering the
interaction between the environmental authorisation requirements of NEMA and
the provisions of the MPRDA:
“Parliament recognised that activities which required environmental
authorisation under NEMA may also be regulated by other legislation
which required similar authorisation. Where the requirements for
authorisation in terms of legislation other than NEMA would meet the
requirements of such authorisation under NEMA, the legislation
indicated the desirability for the organs of state responsible for
issuing these authorisations to avoid duplication and to integrate
their decision making. But critically, the requirement for
environmental authorisation under NEMA in respect of listed
activities was not removed because the activity may now be
regulated in terms of another law.”33
39
He added:
“In my view, [sections 24(8) and 24L(4) of NEMA] make clear,
notwithstanding the processes and authorisations under other laws
including the MPRDA, that an environmental authorisation under
NEMA must be obtained unless the competent authority, empowered
to issue the NEMA authorisation, decides to regard the authorisation
32
City of Cape Town v Maccsand (Pty) Ltd and Others 2010 (6) SA 63 (WCC)
33
At 77G-I, emphasis added
19
under another law as a NEMA authorisation because it meets all the
requirements stipulated in section 24(4).”34
40
Indeed, even if there were some ambiguity in the legislation in this regard
(which we submit is not the case), such ambiguity would not assist the First
Respondent.
40.1 To the extent that the legislation concerned is reasonably capable of
more than one interpretation, this Court is obliged by section 39(2) of the
Constitution to promote the spirit, purport and objects of the Bill of Rights
when interpreting the legislation.
40.2 This requires that, when faced with two possible interpretations, this
court must adopt the interpretation which “better” promotes the spirit,
purport and objects of the Bill of Rights.
This is so even if neither
interpretation would render the statute unconstitutional.35
40.3 In the present case, the right to a healthy environment is a fundamental
right, guaranteed by section 24 of the Constitution.36 Accordingly, this
34
At 79A-D
35
Eg: Wary Holdings (Pty) Ltd v Stalwo (Pty) Ltd and Another 2009 (1) SA 337 (CC) at paras 46, 84
and 107; Fraser v Absa Bank Ltd (NDPP as Amicus Curiae) 2007 (3) SA 484 (CC) at para 47; Arse v
Minister of Home Affairs 2010 (7) BCLR 640 (SCA) at para 10
36
Section 24 provides:
“Everyone has the right(a)
to an environment that is not harmful to their health or well-being; and
(b)
to have the environment protected, for the benefit of present and future generations,
through reasonable legislative and other measures that(i)
prevent pollution and ecological degradation;
(ii)
promote conservation; and
(iii)
secure ecologically sustainable development and use of natural
resources while promoting justifiable economic and social
development.”
20
Court is required to prefer the interpretation of NEMA and the MPRDA
that “better” promotes this right to a healthy environment.37
40.4 It is difficult to see how an interpretation of NEMA that rendered it
inapplicable to all mining activities could ever be said to “better” promote
the right to a healthy environment.
41
We submit therefore that the First Respondent cannot avoid compliance with
the provisions of NEMA requiring environmental authorisation.
42
It was therefore not entitled to commence with the listed activities unless and
until it had the necessary environmental authorisations under NEMA.
It is
common cause that these authorisations have at no stage been sought or
issued.
In the circumstances, the activities of the First Respondent were
unlawful.
The repeal of notices R386 and R387
43
The First Respondent contends that the Applicants’ reliance on notices R386
and R387 is “misplaced” because these notices were repealed with effect from
2 August 2010 by notices R544 and R545.
44
It is correct that, on 2 August 2010, new lists of listed activities were
promulgated and the old lists were repealed. We deal with the new lists below
37
See Maccsand at 79F-G
21
and submit that, under the new lists, the First Respondent is still unlawfully
conducting listed activities without environmental authorisation.
45
In respect of the old lists, what is beyond doubt is that in the period prior to 2
August 2010, the First Respondent’s activities in relation to the tailings dam on
Blinkwater were unlawful because they had failed to comply with NEMA read
with Notices R386 and R387.
46
The unlawfulness of the First Respondent’s conduct cannot be altered by the
subsequent repeal of the Notices. This is made clear by section 12(2) of the
Interpretation Act 33 of 1957. It provides:
“Where a law repeals any other law, then unless the contrary
intention appears, the repeal shall not(a) revive anything not in force or existing at the time at which the
repeal takes effect; or
(b) affect the previous operation of any law so repealed or anything
duly done or suffered under the law so repealed; or
(c) affect any right, privilege, obligation or liability acquired, accrued
or incurred under any law so repealed; or
(d) affect any penalty, forfeiture or punishment incurred in respect of
any offence committed against any law so repealed; or
(e) affect any investigation, legal proceeding or remedy in respect of
any such right, privilege, obligation, liability, forfeiture or
punishment as is in this subsection mentioned,
and any such investigation, legal proceeding or remedy may be
instituted, continued or enforced, and any such penalty, forfeiture or
punishment may be imposed, as if the repealing law had not been
passed.”
47
During the period prior to 2 August 2010, the First Respondent on its own
version:
22
47.1 spent approximately 17 months constructing the tailings dam, which had
a footprint of close on 280 hectares; and
47.2 pumped in substantial quantities of tailings into the dam.
48
In light of Notices R386 and R387, these activities were unlawful.
49
The issue that then arises is what this Court ought to do in relation to these
unlawful activities. The First Respondent’s argument appears to be that, even
if this Court finds that its activities for this substantial period were manifestly
unlawful, it ought to grant the applicants no relief.
50
We submit that such a contention is unsustainable.
Section 32 of NEMA
provides that any person “may seek appropriate relief in respect of any breach
or threatened breach of any provision of this Act”. The provision makes clear
that it applies not only future or threatened breaches of the Act, but also past
breaches.
51
The Constitutional Court has held that relief cannot be “appropriate” unless it is
“effective”:
“[A]n appropriate remedy must mean an effective remedy, for without
effective remedies for breach, the values underlying and the right
entrenched in the Constitution cannot properly be upheld or
enhanced. Particularly in a country where so few have the means to
enforce their rights through the courts, it is essential that on those
occasions when the legal process does establish that an
infringement of an entrenched right has occurred, it be effectively
vindicated. The courts have a particular responsibility in this regard
23
and are obliged to 'forge new tools' and shape innovative remedies,
if needs be, to achieve this goal.”38
52
The SCA has taken an identical approach:
“This places intense focus on the question of remedy, for though the
Constitution speaks through its norms and principles, it acts through
the relief granted under it. And if the Constitution is to be more than
merely rhetoric, cases such as this demand an effective remedy,
since (in the oft-cited words of Ackermann J in Fose v Minister of
Safety and Security) 'without effective remedies for breach, the
values underlying and the right entrenched in the Constitution cannot
properly be upheld or enhanced'.” 39
and
“[T]he relief we give must vindicate the Constitution. As Kriegler J
noted in Fose, 'the harm caused by violating the Constitution is a
harm to the society as a whole, even where the direct implications of
the violation are highly parochial. The rights violator not only harms
a particular person, but impedes the fuller realisation of our
constitutional promise':
'Our object in remedying these kinds of harms should, at least,
be to vindicate the Constitution, and to deter its further
infringement.'”40
53
We submit that the same approach applies here. It is no vindication of the
rights of the applicants and the public under NEMA for this Court to say that it is
now too late to grant relief in respect of patently unlawful activities by the First
Respondent. Similarly, it would in no way vindicate NEMA and deter its further
infringement. Instead, it would allow the First Respondent to benefit from its
38
Fose v Minister of Safety and Security 1997 (3) SA 786 (CC) at para 69. See also Glenister v
President of Republic of South Africa and Others 2009 (1) SA 287 (CC) at para 38 and President of
the Republic of South Africa and Another v Modderklip Boerdery (Pty) Ltd (Agri SA and Others, Amici
Curiae) 2005 (5) SA 3 (CC) at para 58
39
Tswelopele Non-Profit Organisation and Others v City of Tshwane Metropolitan Municipality and
Others 2007 (6) SA 511 (SCA) at para 17
40
Tswelopele Non-Profit Organisation and Others v City of Tshwane Metropolitan Municipality and
Others 2007 (6) SA 511 (SCA) at para 26
24
own unlawful act. It would therefore not be “appropriate relief” under section 32
of NEMA.
54
Rather, the appropriate order is one similar to that granted in the Maccsand
case – that is an order interdicting the First Respondent from continuing to
dump waste and tailings unless and until it has obtained the necessary
authorisations in terms of NEMA for the building of the tailings dam and the
dumping of the tailings.
55
41
The only potential difficulty in this regard is whether the First Respondent can
still obtain authorisation in terms of Notices R386 and R387, given that they
have been repealed. However, that can easily be avoided by this Court making
its order subject to the proviso that the First Respondent is entitled to apply for
authorisation in terms of Notices R386 and R387 notwithstanding their repeal.
55.1 This in keeping with this Court’s wide powers to make an order that is
appropriate in terms of section 32 of NEMA.
55.2 It is also in keeping with this Court’s wide powers to make an order that
is “just and equitable” in terms of section 172(1)(b) of the Constitution
when deciding a constitutional matter. This Court is engaged in deciding
a constitutional matter because this case involves the proper
interpretation and application of NEMA, a piece of legislation designed to
41
City of Cape Town v Maccsand (Pty) Ltd and Others 2010 (6) SA 63 (WCC) at 82D-H
25
give effect to the Constitution.42 That means that this Court is entitled to
exercise its powers under section 172(1)(b) of the Constitution:
“It is clear that s 172(1)(b) confers wide remedial powers on a
competent court adjudicating a constitutional matter. The remedial
power envisaged in s 172(1)(b) is not only available when a court
makes an order of constitutional invalidity of a law or conduct under
s 172(1)(a). A just and equitable order may be made even in
instances where the outcome of a constitutional dispute does not
hinge on constitutional invalidity of legislation or conduct. This ample
and flexible remedial jurisdiction in constitutional disputes permits a
court to forge an order that would place substance above mere form
by identifying the actual underlying dispute between the parties and
by requiring the parties to take steps directed at resolving the dispute
in a manner consistent with constitutional requirements.”43
42
Fuel Retailers Association of Southern Africa v Director-General: Environmental Management,
Department of Agriculture, Conservation and Environment, Mpumalanga Province, and Others 2007
(6) SA 4 (CC) at para 40; National Education Health and Allied Workers Union v University of Cape
Town and Others 2003 (3) SA 1 (CC) at paras 14 – 15; Alexkor Ltd and Another v Richtersveld
Community and Others 2004 (5) SA 460 (CC) at para 23.
43
Head of Department, Mpumalanga Department of Education and Another v Ho ërskool Ermelo and
Another 2010 (2) SA 415 (CC) at para 97
26
THE FIRST RESPONDENT’S FAILURE TO COMPLY WITH NEMA READ WITH
NOTICES R544 AND 545
56
In the previous section of these heads of argument, we contended that the First
Respondent was in breach of NEMA read with notices R386 and R387.
57
We submit further, and in any event, that the First Respondent is in breach of
NEMA read with notices R544 and R545, which came into force on 2 August
2010 and replaced notices R386 and R387. This is set out in the
Applicant’s supplementary affidavit,44 which was filed together with a notice of
intention to amend to include relief in relation to R544 and R545.
58
In view of the fact that the supplementary affidavit was filed on 18 November
2010 and that the First Respondent has not yet answered it, we do not consider
it appropriate to make detailed submissions on this aspect of the case at this
stage.
59
Suffice it to say that the applicants’ case on this score is:
59.1 The First Respondent’s continued construction of the tailings dam and
continued pumping of tailings into the dam fall within the listed activities
under the provisions of Notices R544 and R545. Indeed, many of the
new listed activities are very similar to the listed activities under Notices
R386 and R387.
44
Applicant’s supplementary affidavit, pp 522-527
27
59.2 The First Respondent has no authorisation in terms of NEMA for these
activities.
59.3 NEMA applies to the First Respondent notwithstanding the existence of
its mining permit, for the reasons given in detail above.
60
In the circumstances, the Applicants are entitled to orders interdicting the First
Respondent’s activities unless and until the necessary NEMA authorisations
are obtained.
28
RELIEF SOUGHT
61
In the circumstances, the Applicants seek an order as follows:
1.
2.
It is declared that the first respondent is not entitled to continue
with the disposal of any form of waste, including but not limited
to tailings, slimes and other mining waste, on any part of the
farm Blinkwater 820, registration division LR, Limpopo Province
(“Blinkwater”) unless and until:
1.1
an environmental authorisation has been granted in terms
of the National Environmental Management Act, 107 of
1998 (“NEMA”) for the carrying out of the activities listed
in items 1, 15 and 16 of Government Notice R386 of 21
April 2006 and in items 1, 2 and 6 of Government Notice
R387 of 21 April 2006 on the land in question, provided
that it is directed that the First Respondent may apply for
such authorisation notwithstanding the repeal of
Government Notices R386 and R387;
1.2
An environmental authorisation has been granted in
terms of NEMA for the carrying out of the activities listed
in items 9, 18(i), 37, 39 and 41 of Government Notice
R544 of 18 June 2010 and in item 19 of Government
Notice R545 of 18 June 2010 on the land in question; and
1.3
the written permission of the third respondent is obtained
under Regulation 69(5) of the Mineral and Petroleum
Resources Development Regulations, published under
Government Notice R527 in Government Gazette No.
26275 of 23 April 2004, as amended (the “MPRDA
Regulations”) for the establishment of slimes dam on the
land in question.
The first respondent is interdicted from continuing with the
disposal of any form of waste, including but not limited to
tailings, slimes and other mining waste, on any part of
Blinkwater, unless and until:
2.1
an environmental authorisation has been granted in terms
of the NEMA for the carrying out of the activities listed in
items 1, 15 and 16 of Government Notice R386 of 21
April 2006 and in items 1, 2 and 6 of Government Notice
R387 of 21 April 2006 on the land in question, provided
that it is directed that the First Respondent may apply for
29
such authorisation notwithstanding
Government Notices R386 and R387;
the
repeal
of
2.2
An environmental authorisation has been granted in
terms of NEMA for the carrying out of the activities listed
in items 9, 18(i), 37, 39 and 41 of Government Notice
R544 of 18 June 2010 and in item 19 of Government
Notice R545 of 18 June 2010 on the land in question; and
2.3
the written permission of the third respondent is obtained
under Regulation 69(5) of the MPRDA Regulations for the
establishment of slimes dam on the land in question.
3.
The First Respondent is interdicted from continuing with the
construction of the tailings dam and associated infrastructure on
any part of Blinkwater, unless and until an environmental
authorisation has been granted in terms of NEMA for the
carrying out of the activities listed in items 9, 18(i), 37, 39 and
41 of Government Notice R544 of18 June 2010 and in item 19
of Government Notice R545 of 18 June 2010 on the land in
question.
4.
The First Respondent is to pay the Applicant’s costs, including
the costs of two counsel.
GEOFF BUDLENDER SC
STEVEN BUDLENDER
TEMBEKA NGCUKAITOBI
Counsel for the Applicants
Chambers
Cape Town and Johannesburg
19 November 2010