IN THE NORTH GAUTENG HIGH COURT, PRETORIA
(REPUBLIC OF SOUTH AFRICA)
CASE NO. 56012/10
In the matter between :
MPHOHLELE JAMES SHIBURI
ISAAC MAKGALAMELE
ROSELINA SHIBURI
ELIZABETH MOSIMA KHWINANA
First Applicant
Second Applicant
Third Applicant
Fourth Applicant
and
POTGIETERSRUST PLATINUMS LIMITED
First Respondent
THE MINISTER OF WATER AND
ENVIRONMENTAL AFFAIRS
THE MINISTER OF MINERAL RESOURCES
Second Respondent
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
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FIRST RESPONDENT’S HEADS OF ARGUMENT
Introduction
1.
This matter concerns an application for urgent interdictory and declaratory
relief restraining the first respondent (Potgietersrust Platinums Limited or
“PPL”) from depositing tailings produced from its mining operations
undertaken on various properties located in the vicinity of Mokopane into
the Blinkwater Tailings Dam located on the Farm Blinkwater -
1.1.
until PPL has obtained all necessary mining and environmental
authorisations and permissions, alternatively
1.2.
pending the outcome of the review application launched by the
applicants in December 2009. (The review application seeks to
review and set aside the decision of the fourth respondent (the
Minister of Rural Development and Land Reform) to grant a
notarial lease to PPL in respect of the Farm Blinkwater. The
review application also seeks to interdict PPL from undertaking
mining related activities on the Farm Blinkwater unless and until
the necessary mining and environmental authorisations have been
-3-
obtained – i.e. the same relief sought in the present urgent
application.)1
2.
PPL denies firstly, that the matter is urgent and secondly, that it requires
any additional authorisations to deposit tailings into the Blinkwater Tailings
Dam apart from those authorisations which have already been granted to
it and in respect of which it is in full compliance.
3.
These heads of argument will thus deal firstly with the question of urgency
and then with each statutory authorization the applicants’ allege is
necessary for PPL to deposit tailings into the Blinkwater Tailings Dam.
Thereafter, the remaining requirements for the grant of interdictory relief
will be dealt with in turn.
Urgency
4.
The applicants contend that this matter has been launched at this time and
on the basis of urgency because they have only recently become aware
that PPL has begun depositing tailings into the Blinkwater Tailings Dam,
which will have irreversible consequences if not stopped.2
1
2
Notice of Motion, p2.
Founding Affidavit (“FA”) 21, 25 and 30, pp 18, 19 and 21.
-4-
5.
The applicants’ have been aware of the intended construction of the
Blinkwater Tailings Dam since 16 January 2009.3
6.
The applicants must also have known that once construction of the dam
had been completed, tailings would be deposited in it. It is no doubt for this
reason that the applicants included a prayer for interdictory relief (which
relief is substantially the same as is being sought in the present
application) in the review proceedings launched in December 2009.
7.
The applicants allege however that the urgency of the relief sought only
arose when they became aware that PPL had commenced or was about
to commence depositing tailings into the Blinkwater Tailings Dam.
Urgency, however, does not suddenly arise when an event which has
been anticipated for a long time, eventually occurs. The deposition of
tailings into the Blinkwater Tailings Dam, construction of which
commenced, to the knowledge of the applicants, almost two years ago,
cannot in the circumstances create urgency.
8.
By 29 September 2009 the applicants had formulated the view that the
construction of the tailings dam was unlawful on the basis, amongst
others, that PPL’s mining right did not entitle it to undertake mining related
activities on the Farm Blinkwater and that no environmental authorization
3
Answering Affidavit (“AA”) 11, p317; Replying Affidavit (“RA”) 10, p426.
-5-
had been obtained for the construction of the tailings dam in terms of the
National Environmental Management Act, 1998 (“NEMA”).4
9.
In its letter to the fifth respondent (the MEC for Economic Development,
Environment and Tourism or “the MEC”) of 29 September 2009, the
applicants’ attorney Mr Richard Spoor (“Spoor”) called upon the MEC to
direct PPL and their contractors “immediately to desist from further
construction activities on Blinkwater until such time as the activities have
been legalized in terms of the appropriate legislation …”. The letter
threatened that should the MEC fail to do so, application would be made
“to the High court for an appropriate order to stop such activities”.5
10.
This letter was forwarded to PPL on the same date and PPL was similarly
urged “to stop all activities on Blinkwater Farm, pending receipt of all
relevant authority, licence (sic) and permits, including an Environmental
Impact Assessment, in terms of the applicable legislation”. The letter
concluded by stated that “[f]ailing to do so will force us to apply for an
urgent interdict against you …”.6
4
See MJS 10, p265.
See para’s 16 and 17, MJS 10, p269-270.
6 See MJS 11, p270.
5
-6-
11.
On 2 October 2009 PPL responded to Spoor’s letter of 29 September
2009 setting out in considerable detail why it was of the view that its
activities on the Farm Blinkwater were not unlawful as alleged by Spoor.7
12.
By 2 October 2009, therefore, the applicants had not only formulated their
view on the alleged unlawfulness of PPL’s activities on the Farm
Blinkwater but they were also fully aware of PPL’s attitude to the alleged
unlawfulness. Notwithstanding the threats to launch urgent interdictory
proceedings contained in the aforesaid letters to the MEC and PPL, the
applicants nevertheless waited for a further period of almost twelve
months before launching the present proceedings.
13.
The applicants provide two reasons for their delay in launching this
application:
13.1.
Firstly, they contend that since they had already instituted the
review application referred to above in December 2009, they
lacked financial resources to institute additional proceedings
against PPL.8 The applicants indicate, however, that this urgent
application is being handled pro bono by the Legal Resources
Centre in Cape Town (“LRC”) and by attorney Spoor9, who also
launched the aforesaid review application on the applicants’
behalf. There is no explanation as to why the LRC and Spoor were
7
See MJS 12, p319.
FA 43, p27.
9 FA 91, p47.
8
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not able to assist the applicants on a similar basis at an earlier
stage.
13.2.
Secondly, the applicants allege that another reason why they were
not able to launch this application earlier was because of the
“extremely complicated and uncertain” relationship between the
Mineral and Petroleum Resources Development Act, 28 of 2002
(“the MPRDA”) and NEMA, which relationship they contend was
only recently clarified in the Maccsand judgment10 and which
“exposed the illegality of the conduct of [PPL] in conducting mining
activities without the requisite environmental authorisations under
NEMA”.11 Even if the Maccsand judgment is correct (which PPL
contends it is not for the reasons set out later in these heads of
argument) it does not explain the delay in the launch of this
application. As mentioned above, by 2 October 2009 the
applicants had already formulated their view on the alleged
unlawfulness of PPL’s activities on the Farm Blinkwater and were
aware of PPL’s attitude to the alleged unlawfulness. Knowledge of
the Maccsand judgment may have emboldened the applicants’
legal advisors, but it cannot create urgency where there was none
before.
10
11
FA 46 – 47, pp 28 -29.
RA 9.2, p425.
-8-
14.
PPL began to pump tailings into the Blinkwater Tailings Dam on 15 July
2010, more than four months ago. At the time the answering affidavit was
filed approximately 1,2 million tons of tailings had already been pumped
into the Blinkwater Tailings Dam. Currently 30 hectares of the Farm
Blinkwater is covered by tailings and 16 hectares by waste rock walls. In
addition, since the commencement of the construction of the tailings dam
some 23 months ago and owing to the location of the supporting
infrastructure for the tailings dam, most of the area inside the fenced-off
leased area has already been utilised for the aforementioned construction
activities. The footprint of the aforementioned construction activities is
approximately 280 ha at this time.12
15.
In light of the significant amount of work already carried out on the Farm
Blinkwater over the past 23 months, the applicants’ knowledge of such
work and the considerable amount of tailings that have already been
pumped into the Blinkwater Tailings Dam, it is submitted that no case can
be made out for bringing these proceedings on an urgent basis.
16.
In the premises, PPL contends that this application has been improperly
brought on the basis of urgency and is an abuse of this Honourable
Court’s process. It should, accordingly, be struck from the roll for want of
urgency.
12
AA 18, p321.
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The rights the applicants seek to enforce: The alleged breaches of statute.
17.
The applicants’ allege that the construction of and deposition of tailings
into the Blinkwater Tailings Dam is in contravention of various mining and
environmental statutes. The applicants’ allege further that they have a
right to interdict PPL from acting in contravention of these statutes which
right stems from and is in addition to the environmental right enshrined in
section 24 of the Constitution.13
The construction of and deposition of tailings into the Blinkwater
Tailing Dam is not in contravention of NEMA
18.
The applicants’ allege that the construction and use of the Blinkwater
Tailings Dam has not been authorized in terms of NEMA and was
therefore undertaken and is presently being undertaken in contravention of
the provisions of section 24F of NEMA.14
19.
At the time PPL commenced construction of the Blinkwater Tailings Dam
section 24F(1) of NEMA provided as follows:
Notwithstanding the provisions of any other Act, no person may
commence an activity listed in terms of section 24(2)(a) or (b) unless
the competent authority has granted an environmental authorisation
for the activity, and no person may continue an existing activity listed
in terms of section 24(2)(d) if an application for an environmental
authorisation is refused.
13
14
FA 52 and 53, pp 30-31.
FA 60, p36.
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20.
It is common cause that PPL has not obtained an environmental
authorization in terms of the provisions of NEMA for its mining related
activities on the Farm Blinkwater.15
21.
PPL maintains, however, that an environmental authorization in terms of
NEMA is not required for these activities. PPL contends that the
environmental impacts of its mining activities are regulated in terms of the
mining right granted to it in terms of the MPRDA and in particular its
Amended Environmental Management Programme (“EMP”) approved in
2003 in terms of the Minerals Act, 50 of 1991, which EMP remains in force
by virtue of the transitional arrangements contained in the MPRDA. The
aforesaid EMP specifically authorizes PPL to construct and use the
Blinkwater Tailings Dam.16
22.
To understand and contextualize PPL’s contentions it is necessary first to
examine the rights and obligations of the holder of a mining right granted
in terms of the MPRDA (such as PPL who is the holder of a converted old
order right17), then to examine the ambit of environmental authorisations
required in terms of NEMA and thereafter to consider whether the
undertaking of mining related activities requires authorization both in terms
of the MPRDA and in terms of NEMA.
15
See MJS 7, p260 and MJS 8, p312.
AA 25.1, p323.
17 AA 28.3, p328.
16
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The rights and obligations of the holder of a mining right granted in terms
of the MPRDA
23.
The rights and obligations created through the grant of a mining right in
terms of the MPRDA are principally set out in section 5.18
24.
Section 5(3) sets out the rights of holders of rights granted in terms of the
MPRDA and provides as follows:
“Subject to this Act, any holder of a … mining right … may -
(a) enter the land to which such right relates together with his or
her employees, and may bring onto that land any plant,
machinery or equipment and build, construct or lay down
any surface, underground or under sea infrastructure
which may be required for the purposes of …mining …;
(b) … mine … for his or her own account on or under that land for
the mineral … for which such right has been granted;
(c) remove and dispose of any such mineral found during the
course of … mining …;
(d) subject to the National Water Act, 1998 (Act 36 of 1998),
use water … required for use relating to … mining … on such
land; and
(e) carry out any other activity incidental to … mining …
operations, which activity does not contravene the provisions of
this Act.” [emphasis added]
25.
In addition to the extensive rights granted in terms of this section,
subsection (e) grants to the holder of a mining right the right to carry out
18
Various other provisions in the MPRDA confer rights on holders of mining rights, including
specifically section 25 and more generally sections 6, 11, 96 and 102.
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any other activity ‘incidental to’ such mining operations which does not
contravene the provisions of the Act.
26.
The test whether a use is “incidental to” another, has been held to be
whether the use is “legitimately part of that other use when viewed
objectively.”19 Thus to determine whether a particular activity undertaken
at a mine is incidental to mining, one must ask whether the activity is
legitimately part of the mining activity when viewed objectively.
27.
It has also been held that one's right to undertake mining operations refers
not only to the right to undertake the actual mining operations but also to
all such subsidiary or ancillary rights, without which one would not be able
effectively to carry on mining operations.20
28.
The construction of, and deposition of tailings into, the Blinkwater Tailings
Dam is necessary for PPL effectively to carry on mining operations on
adjacent properties and is thus ‘incidental to’ PPL’s operations on these
properties.
19
20
Pick n' Pay Stores Limited & Others v Teasers Comedy & Review CC & Others 2003 (3) SA 645
(W) at 658. See also Coin Operated Systems (Pty) Ltd & Another v Johannesburg City Council
1973 (3) SA 856 (W) and S v Pine Smythe (Pty) Ltd 1982 (2) SA 32 (N) in which the phrase
"incidental to" was equated to being legitimately part of the former use.
See Malan J in Hudson v Mann & Another 1950 (4) SA 485 (T) at 488.
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29.
The right to undertake any activity necessary for the mining operations
must be read with the proviso to section 5(3) which states that the rights
are “subject to this Act”.21
30.
In Hickman v the Attorney General,22 it was stated that:
“Generally speaking, the words 'subject to' have the effect of
introducing a qualification, limitation or condition precedent,
thereby curtailing a person's exercise of otherwise unlimited or
unrestricted rights.”23
31.
One such limitation is imposed in section 5(3) itself and relates to the use
of water for mining purposes.24
32.
Further limitations are contained in section 5(4) which contains specific
prohibitions against the undertaking of mining related activities in the
absence of, inter alia,
“an approved environmental management programme or
approved environmental management plan, as the case may be”25
21
22
23
24
25
“This Act” is defined in section 1 of the MPRDA to include “the regulations and any term or
condition to which any permit, permission, license, right, consent, exemption, approval, notice,
closure certificate, environmental management plan, environmental management programme or
directive issued, given, granted, or approved in terms of this Act, is subject”. A mining right is
also subject to the common law obligation that “the holder of the mineral rights must exercise
them civiliter modo, i.e. in a manner least injurious to the property of the surface owner.” See
Franklin & Kaplan, “The mining and mineral laws of South Africa”, page 418.
1980 (2) SA 583 (R) at 585. See also Cook & Another v Minister of Home Affairs & Another
2000 (2) SA 385 (T) at 389.
See also Hawkins v Administration of South West Africa (1924 SWA 57) in which the words
"subject to" were interpreted to mean "except as curtailed by".
Section 5(3)(d).
Section 5(4)(a).
- 14 -
33.
As far as environmental obligations are concerned, therefore, the only
restrictions imposed on the holder of a mining right in terms of section 5 of
the MPRDA are those imposed on the use of water in terms of the
National Water Act and those imposed in such holder’s approved
environmental management programme.26
34.
The exercise of a mining right is further limited by section 23 of the
MPRDA, which provides, in subsection (6) that:
"a mining right is subject to this act, any relevant law, the terms and
conditions stated in the right and the prescribed terms and conditions
and is valid for a period specified in the right, which period may not
exceed thirty years." [emphasis added]
35.
The reference to any other law is subject to the proviso that such law be
“relevant”. On the face of it “any relevant law” includes laws relating to the
environment which would include NEMA and other environmental laws. 27
That reference, however, is not as significant as it might seem. All rights
are subject to “relevant” laws – i.e. laws which either expressly or by
necessary implication govern such rights. Whether or not another law is
“relevant” depends upon its provisions.
26
27
This follows from an application of the maxim ‘expressio unius est exclusio alterius’ (which
literally translated means where there is an express mention of one thing (or person or modus
operandi), the other is excluded). It should, however, be borne in mind that in South Africa as
well as in England, the maxim has at all times been applied with great caution. One reason for
this is that very often the exclusion is inadvertent; it may have never struck the draftsman that
the thing supposed to be excluded needed specific mention. See in this regard, EA Kellaway,
Principles of Legal Interpretation: Statues, Contracts and Wills, page 154ff.
These would include, for example, section 22 of the Environment Conservation Act, 73 of 1989,
section 22 of the National Water Act 36 of 1998, section 24 of the National Forest Acts Act 84 of
1998, section 48 of the National Environmental Management: Protected Areas Act 57 of 2003,
section 33 of the National Environmental Management: Air Quality Act 39 of 2004 and section
20 of the National Environmental Management: Waste Act 59 of 2008. See Dale, South African
Mineral and Petroleum Law page MPRDA - 205 and in particular footnote 930.
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36.
As far as NEMA is concerned, the relevant environmental management
principles and procedures contained in NEMA are expressly incorporated
in the MPRDA and those parts of NEMA that are not incorporated into the
MPRDA are not a “relevant law” as contemplated.
37.
In this regard, section 37(1) of the MPRDA28 provides that the
environmental management principles set out in section 2 of NEMA are
applicable to all prospecting and mining operations and are to serve as
guidelines for the interpretation, administration and implementation of the
environmental requirements of the MPRDA.29
38.
In addition, NEMA is expressly referred to in section 38(1) of the MPRDA
which provides, inter alia, that the holder of a mining right must at all times
give effect to the objectives of integrated environmental management laid
down in Chapter 5 of NEMA and must consider, investigate, assess and
28
29
Section 37(1) provides as follows:
“(1) The principles set out in section 2 of the National Environmental Management Act, 1998
(Act 107 of 1998)(a)
apply to all prospecting and mining operations, as the case may be, and any
matter relating to such operation; and
(b)
serve as guidelines for the interpretation, administration and implementation of the
environmental requirements of this Act.
Section 37(2) provides as follows:
(2) Any prospecting or mining operation must be conducted in accordance with generally
accepted principles of sustainable development by integrating social, economic and
environmental factors into the planning and implementation of prospecting and mining
projects in order to ensure that exploitation of mineral resources serves present and future
generations.”
Even if the MPRDA had been silent on this issue, these principles would in any event need to
be considered in such decisions. This is so because section 2 of NEMA has established the
predominance of the environmental management principles and requires all organs of state to
align themselves with these principles. See Dale supra, MPRDA – 320.
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communicate the impact of his mining operations on the environment as
contemplated in section 24(7) of NEMA.30
39.
The principal means through which the MPRDA seeks to regulate the
environmental impacts of mining is through the requirement that
environmental management programmes or plans must be compiled and
approved by the Minister of Mineral Resources.31
40.
The
procedure
for
submission
and
approval
of
environmental
management plans and programmes and the minimum content of such
plans and programmes is set out in section 39 of the MPRDA32 together
with the regulations promulgated thereunder.33
30
31
32
Section 38(1) provides as follows:
“(1) The holder of a reconnaissance permission, prospecting right, mining right, mining permit
or retention permit(a)
must at all times give effect to the general objectives of integrated environmental
management laid down in Chapter 5 of the National Environmental Management
Act, 1998 (Act 107 of 1998);
(b)
must consider, investigate, assess and communicate the impact of his or her
prospecting or mining on the Environment as contemplated in section 24 (7) of the
National Environmental Management Act, 1998 (Act 107 of 1998);
(c)
must manage all environmental impacts(i)
in accordance with his or her environmental management plan or
approved environmental management programme, where appropriate; and
(ii)
as an integral part of the reconnaissance, prospecting or mining operation,
unless the Minister directs otherwise;
(d)
must as far as it is reasonably practicable, rehabilitate the environment affected by
the prospecting or mining operations to its natural or predetermined state or to a
land use which conforms to the generally accepted principle of sustainable
development; and
(e)
is responsible for any environmental damage, pollution or ecological degradation
as a result of his or her reconnaissance prospecting or mining operations and
which may occur inside and outside the boundaries of the area to which such right,
permit or permission relates.”
See in this regard section 38(1)(c) set out above.
Section 39(3) in particular, provides
“(3) An applicant who prepares an environmental management programme or an
environmental management plan must-
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41.
It is apparent from the aforesaid sections that the MPRDA together with
the regulations provide expressly for the environmental impacts of mining
activities and how these impacts are to be managed. The regulations in
particular prescribe in detail what must be contained in the scoping reports
and environmental impact assessment reports which are to be taken into
consideration by the relevant authority in deciding whether or not to
authorise the relevant mining operation. Importantly, and by virtue of
section 38(1)(b) of the MPRDA, such reports and assessments must
comply with the minimum requirements set out in section 24(7) of NEMA. 34
42.
The
regulations
further
prescribe
the
content
of
environmental
management programmes and plans which must, by virtue of section
38(1)(b) of the MPRDA, give effect to the objectives of integrated
environmental management laid down in Chapter 5 of NEMA.
(a)
33
34
establish baseline information concerning the affected environment to determine
protection, remedial measures and environmental management objectives;
(b)
investigate, assess and evaluate the impact of his or her proposed prospecting or
mining operations on(i)
the environment;
(ii)
the socio-economic conditions of any person who might be directly
affected by the prospecting or mining operation; and
(iii)
any national estate referred to in section 3 (2) of the National Heritage
Resources Act, 1999 (Act 25 of 1999), with the exception of the national
estate contemplated in section 3 (2) (i) (vi) and (vii) of that Act;
(c)
develop an environmental awareness plan describing the manner in which the
applicant intends to inform his or her employees of any environmental risks which
may result from their work and the manner in which the risks must be dealt with in
order to avoid pollution or the degradation of the environment; and
(d)
describe the manner in which he or she intends to(i)
modify, remedy, control or stop any action, activity or process which
causes pollution or environmental degradation;
(ii)
contain or remedy the cause of pollution or degradation and migration of
pollutants; and
(iii)
comply with any prescribed waste standard or management standards or
practices.”
The MPRDA regulations were published in GNR 527 of 23 April 2004. See in particular
regulations 48 – 52).
As will be discussed below, section 24(7) of NEMA was repealed and replaced by section 24(4)
by Act 8 of 2004 which came into operation on 7 January 2005.
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43.
Section 41 of the Act read together with regulations 53 and 54 provide in
addition for financial provision to be made for the remediation of
environmental damage caused by mining operations.
44.
It is clear, therefore, that the MPRDA prescribes a comprehensive system
to manage and mitigate the environmental impacts of mining.
45.
More importantly for present purposes, however, is the fact that these
sections demonstrate how the legislature has elected to give effect to
NEMA in the mining context.
46.
This is manifest firstly, by the express application of the environmental
management principles contained in section 2 of NEMA to all mining
operations and secondly, by subjecting the exercise of a mining right to an
environmental management programme which itself must give effect to the
objectives of integrated environmental management laid down in Chapter
5 of NEMA and by making the approval of such programme subject to the
environmental management principles contained in section 2 of NEMA
and the minimum requirements contained in section 24(7) of NEMA.
47.
Cognisant of the fact that other government departments administer laws
relating to matters affecting the environment, section 40 of the MPRDA
requires the Minister of Mineral Resources, when considering an
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environmental management programme or plan, to consult with such other
government department.35
48.
Thus not only does the MPRDA give direct effect to NEMA in the mining
context but it also provides for cooperation with other government
departments administering laws affecting the environment in accordance
with the principles of cooperative governance enshrined in Chapter 3 of
the Constitution of the Republic of South Africa, 1996.
Environmental authorisations required in terms of NEMA
49.
The application of NEMA is made more difficult by the fact that it has been
significantly amended three times since the MPRDA came into operation
on 1 May 20004. To understand the application of NEMA in the mining
context it is necessary to trace the relevant provisions through the various
amendments.
50.
NEMA came into operation on 29 January 1999; i.e. prior to the date the
MPRDA was assented to (3 October 2002) and accordingly, prior to the
date the MPRDA came into operation (1 May 2004).
35
Section 40 provides as follows:
“(1) When considering an environmental management plan or environmental management
programme in terms of section 39, the Minister must consult with any State department
which administers any law relating to matters affecting the environment”
(2)
The Minister must request the head of a department being consulted, in writing, to submit
the comments of that department within 60 days from the date of the request.”
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51.
Environmental authorisations are provided for in Chapter 5 of NEMA,
consisting of sections 23 and 24, which deal with integrated environmental
management generally.
52.
Section 23 sets out the general objectives of integrated environmental
management and places a positive duty on the Director General to coordinate the activities of the different organs of state in giving effect to
integrated environmental management.36
53.
At the time the MPRDA was assented to and at the time it commenced,
the relevant provisions of section 24 provided as follows:
“(1)
In order to give effect to the general objectives of
integrated environmental management laid down in this
Chapter, the potential impact on –
(a)
(b)
(c)
the environment;
the socio-economic conditions; and
the cultural heritage,
of activities that require authorisation or permission by
law and which may significantly affect the environment
must be considered, investigated and assessed prior to
their implementation and reported to the organ of state
charged by law with authorising, permitting, or
otherwise allowing the implementation of an activity.
(2)
36
The Minister may with the concurrence of the MEC,
and every MEC may with the concurrence of the
Minister, in the prescribed manner-
Section 23(3) of NEMA provides as follows: “The Director-General must coordinate the activities
of organs of state referred to in section 24(1) and assist them in giving effect to the objectives of
this section and such assistance may include training, the publication of manuals and guidelines
and the coordination of procedures.”
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(a)
identify activities which may not be commenced
without prior authorisation from the Minister or
MEC;
(b)
identify geographical areas in which specified
activities may not be commenced with prior
authorisation from the Minister or MEC and
specify such activities;
(c)
(d)
(e)
…
…
…
Provided that where authorisation for an activity falls
under the jurisdiction of another Minister, a decision in
respect of paragraphs (a) or (b) must be taken in
consultation with such other Minister.
(3) (a)
The investigation, assessment and communication of
the potential impact of activities contemplated in
subsection(1) must take place in accordance with
procedures complying with subsection (7).
(b)
Every Minister and MEC responsible for an organ of
state that is charged by law with authorising, permitting,
or otherwise allowing an activity contemplated in
subsection (1) may prescribe regulations laying down
the procedures to be followed and the report to be
prepared for the purpose of compliance with paragraph
(a).
(c)
Any regulations made in terms of this subsection or any
other law that contemplates the assessment of the
potential environmental impact of activities must,
notwithstanding any other law, comply with subsection
(7).
(d)
…
(5)
Compliance with the procedure laid down by a Minister
or MEC does not remove the need to obtain
authorisation for that activity from any other organ of
state charged by law with authorising, permitting or
otherwise allowing the implementation of the activity.
(7)
Procedures for the investigation, assessment and
communication of the potential impact of activities
must, as a minimum, ensure the following …”
- 22 -
54.
The application of this section to mining operations (it being assumed that
mining operations may significantly affect the environment) entailed that
prior to such operations being implemented the impact of the operations
on, amongst other things, the environment must be considered,
investigated and assessed and reported to the Department of Minerals
and Energy (as it then was, being the organ of state charged by law with
authorising mining operations). In deciding whether to authorise the
particular mining operation, the Department of Minerals and Energy had to
ensure compliance with the minimum requirements contained in section
24(7).
55.
Subsections (2)(a) and (b) gave the Minister of Environmental Affairs and
Tourism and his or her provincial counterparts, the power to identify,
amongst other things, activities or areas in which specified activities may
not commence without the permission of the Minister or such MEC.
56.
If an activity identified by the Minister or MEC fell within the jurisdiction of
another Minister, however, the decision to require environmental
assessment and permitting for that activity could only be taken with the
agreement of that other Minister. This would consequently have required
the agreement of the Minister or MEC and the other Minister concerned.
- 23 -
This arises by virtue of the use of the phrase ‘in consultation with’ in the
proviso to section 24(2).37
57.
Where an activity was identified in terms of section 24(2) however, section
24(5) made it clear that an authorisation received from the Minister of
Environmental Affairs and Tourism (or his or her provincial counterpart) did
not remove the need to obtain authorisation for that activity from any other
organ of state charged by law with authorising the activity.
58.
At the time the MPRDA came into operation (on 1 May 2004) no activities
had been identified in terms of section 24(2) of NEMA and the only
activities
which
required
an
environmental
assessment
under
environmental laws specifically, were those activities that had been
identified in terms of section 21 of the Environment Conservation Act, 73
of 1989 and the regulations promulgated in terms thereof on 5 September
1997.38
37
38
McDonald and Others v Minister of Minerals and Energy and Others 2007 (5) SA 642(C) at
paras 17 and 18.
These regulations were promulgated in GNR 1182, 1183 and 1184 in GG 18261 of 5
September 1997. Although these regulations made no reference to mining activities per se,
several of the activities identified would generally have been incidental to such activities. These
include for example, the construction, erection or upgrading of roads, railways, airfields and
associated structures, above ground cableways and associated structures, canals and
channels, including structures causing disturbances to the flow of water in a river bed, dams,
levees and weirs affecting the flow of a river, sewage treatment plants and associated
infrastructure and the disposal of waste as defined in section 20 of the Environment
Conservation Act. Since the issues arising from the identification of such activities are similar to
those that arise as a result of the identification of activities in terms of section 24(2) of NEMA, it
is appropriate to consider the effect of such identification, when the activities identified in terms
of that section are discussed later in these heads of argument.
- 24 -
59.
Section 24(3), however, authorized any Minister responsible for an organ
of state that is charged by law with authorizing an activity which may
significantly affect the environment (such as the Minister of Mineral
Resources in relation to mining operations) to prescribe regulations laying
down the procedures to be followed and the report to be prepared for the
investigation of the potential impact of that activity on the environment. 39
60.
What is immediately apparent from this analysis is that the provisions of
the MPRDA discussed above give express effect to these provisions of
NEMA and, as mentioned above, reflect the legislature’s interpretation of
precisely how these sections of NEMA are to be implemented in the
mining context.
61.
Section 24 of NEMA was amended by the National Environmental
Management Amendment Act 8 of 2004 which came into operation on 7
January 200540 and thus after the MPRDA had already come into
operation.
62.
Section 24, as amended, provided:
“(1)
39
40
In order to give effect to the general objectives of
integrated environmental management laid down in this
Chapter, the potential impact on the environment of
listed activities must be considered, investigated,
assessed and reported on to the competent authority
Subsection (4) sets out certain procedures to be followed before such regulations may be
prescribed.
Proclamation R1 in GG 27161 of 6 January 2005.
- 25 -
charged by this Act with granting the relevant
environmental authorisation.
(2)
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;
(b)
…;
(c)
…;
(d)
…;
Provided that where an activity falls under the
jurisdiction of another Minister or MEC, a decision in
respect of paragraphs (a) to (d) must be taken after
consultation with such other Minister or MEC.
63.
(4)
Procedures for the investigation, assessment and
communication of the potential impact of activities must
ensure, as a minimum, with respect to every
application for an environmental authorization …
(8)
Authorisations or permits 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 and any such other
authorisations or permits may only be considered by
the competent authority if they are in compliance with
subsection 4(d).”
An “environmental authorisation” was defined in section 1 of NEMA to
mean “the authorisation by a competent authority of a listed activity in
terms of this Act”.
64.
A “competent authority” was defined in section 1 in respect of a listed
activity or specified activity to mean:
- 26 -
“the organ of state charged by this Act with evaluating the
environmental impact of that activity and, where appropriate, with
granting or refusing an environmental authorisation in respect of
that activity”
65.
In this regard, Act 8 of 2004 introduced a further section (section 24C)
entitled “procedure for identifying the competent authority”, subsection (1)
of which provided that:
“When listing activities in terms of section 24(2) the Minister, or the
MEC with the concurrence of the Minister, must identify the
competent authority responsible for granting environmental
authorisations in respect of those activities.”
66.
Finally, a “listed activity” was defined in section 1 to mean “an activity
identified in terms of section 24(2)(a) and (d)”.
67.
For present purposes, the most significant consequences of the
amendments to section 24 of NEMA were the following:
67.1.
Firstly, the amended section 24(1) limited the application of
integrated environmental management to “listed activities” only.
Once such an activity is identified by the Minister of Environmental
Affairs and Tourism (or his or her provincial counterpart), it may
not commence without an environmental authorisation.
67.2.
Secondly, the identification of listed activities that fall under the
jurisdiction of another Minister could be identified solely by the
Minister of Environmental Affairs and Tourism (or by his or her
- 27 -
provincial counterpart) provided that the decision is taken in good
faith after consultation with and serious consideration of the view
of such other Minister.41
67.3.
Thirdly, environmental authorisations are issued by competent
authorities, which authorities are determined by the Minister of
Environmental Affairs and Tourism (or his or her provincial
counterpart) in respect of each activity identified.42
67.4.
Fourthly, and arguably most importantly for present purposes, was
the inclusion of subsection (8).43 This required authorisation in
terms of NEMA for “listed activities” even where authorisations or
permits for such activities have been obtained under another
law.44
68.
On 21 April 2006, the Minister of Environmental Affairs and Tourism acted
in terms of section 24 of NEMA and promulgated regulations (GNR 386
and 387)45 which identified activities that may not commence without
41
42
43
44
45
This follows from the phrase “after consultation with” in the proviso to section 24(2). See
McDonald and Others v Minister of Minerals and Energy and Others supra and see also ‘Mining
Law’ in 2007 Annual Survey of South African Law.
This follows from the definition of ‘competent authority’ in section 1 of NEMA read with section
24C.
Subsection (8) introduced a reciprocal obligation to that contained in subsection (7) which is
substantially similar to what was originally subsection 5 of section 24. It requires authorisation
for any activity that requires authorisation under any law besides NEMA from the organ of state
charged by law with authorising that activity even where an environmental authorisation has
been obtained under NEMA for the activity.
The subsection further provides that such authorisations or permits may only be considered by
“the competent authority” if they are in compliance with subsection 4(d). Subsection 4(d) is set
out in full in paragraph 6.19 above.
In GG 28753 of 21 April 2006 in terms of section 24 of NEMA.
- 28 -
environmental authorisation from the competent authority identified in the
regulations. A further regulation (GNR 385)46 prescribed the process that
had to be followed to obtain such environmental authorisation.
(Collectively these regulations are referred to as the “environmental impact
assessment regulations 2006” or simply the “EIA regulations, 2006”.)
69.
These regulations, which came into operation on 3 July 2006,47 repealed
and replaced the EIA regulations promulgated in terms of the Environment
Conservation Act 73 of 1989.48
70.
GNR 386 and 387 contained schedules of activities identified in terms of
section 24(2)(a) and (d) of NEMA which could not commence without
authorisation from the competent authority. The investigation, assessment
and communication of potential impact of these activities had to follow
either a basic environmental assessment procedure or a full environmental
impact assessment process as set out in GNR 385.
71.
Mining related activities were identified in items 8 and 9 of GNR 386 and in
items 7 and 8 of GNR 387.
46
47
48
Also published in GG 28753 of 21 April 2006 in terms of section 24 read with section 44 of
NEMA.
In terms of GNR 612 in GG 28938 of 23 June 2006.
Promulgated in GNR 1182, 1183 and 1184 in GG 18261 of 5 September 1997.
- 29 -
72.
Items 8 and 9 of GNR 386 provided as follows:
“8. Reconnaissance, prospecting, mining or retention operations
as provided for in the Mineral and Petroleum Resources
Development Act, 2002 (Act No. 28 of 2002), in respect of
such permissions, rights, permits and renewals thereof.
9. In relation to permissions, rights, permits and renewals
granted in terms 8 above, or any other similar right granted in
terms of previous of mineral or mining legislation, the
undertaking, of any prospecting or mining related activity or
operation within a prospecting, retention or mining area, as
defined in terms of section of 1 of the Mineral and Petroleum
Resources Development Act, 2002 (Act No. 28 of 2002).”
73.
Items 7 and 8 of GNR 387 provided as follows:
“7
Reconnaissance, exploration, production and mining as
provided for in the Mineral and Petroleum Resources
Development Act, 2002 (Act 28 of 2002), (as amended) in
respect of such permits and rights.
8.
In relation to permits and rights granted in terms of 7 above, or
any other right granted in terms of previous mineral legislation,
the undertaking of any reconnaissance exploration, production
or mining related activity or operation within a exploration,
production or mining area as defined in section 1 of the
Mineral and Petroleum Resources Development Act, 2002
(Act 28 of 2002).”
- 30 -
74.
In regard to item 8 of GNR 386 and item 7 of GNR 387 the regulations
provided that:
“The competent authority for this part of the schedule is the
Minister or an organ of state with delegated powers in terms of
section 42(1) of the Act, as amended.”49
75.
Although the precise meaning of the aforesaid items is far from clear, it
would appear that the activities contemplated in the aforesaid regulations
were, amongst others, firstly, the application for a mining right or the
application for the renewal thereof and, secondly, the undertaking of any
mining related activity or operation pursuant to a mining right within a
mining area as defined in the MPRDA.
76.
Both item 9 (of GNR 386) and item 8 (of GNR 387) referred, amongst
others, to “the undertaking of any mining related activity or operation within
a mining area”, as defined in terms of section 1 of the MPRDA.
77.
A “mining area” is defined in section 1 of the MRPDA in relation to a
mining right or a mining permit as, amongst others, “the area for which that
right or permit is granted”.50
49
Section 42(1) of NEMA provides that:
“The Minister may delegate a power or duty vested in him or her in terms of this Act or a
specific environmental management act to
(a) the Director General;
(b) an MEC by agreement with the MEC;
(c) the management authority of a particular protected area; or
(d) any organ of state, by agreement with that organ of state”.
Although it is not clear from either the schedule to GNR 386 or 387, it is submitted that the
competent authority for both Items 8 and 9 of GNR 386 and Items 7 and 8 of GNR 387 is
intended also to be “the Minister or an organ of state with delegated powers in terms of section
42(1) of the Act, as amended”.
- 31 -
78.
The term “mining operation” is defined in section 1 of the MPRDA to mean
“any operation relating to the act of mining and matters directly incidental
thereto”.
79.
Although the regulations came into operation on 3 July 2006, the date of
commencement for items 7 and 8 of GNR 386 and GNR 387 was
postponed to a date to be published in a separate notice. Notwithstanding
the question of whether or not the Minister was in fact entitled to identify
mining activities (which is considered in more detail below) “listed
activities” did not include the undertaking of any mining related activity or
operation pursuant to a mining right within a mining area as defined in the
MPRDA.
80.
Notwithstanding the specific listing of mining related activities, it is
immediately apparent from a reading of the other activities listed in the
schedules to GNR 386 and GNR 387 that there were numerous activities
which are incidental or ancillary to mining operations that were listed as
separate items in the schedules.51
50
51
A mining area also has a separate defined meaning in relation to any environmental, health,
social and labour matter and any latent or other impact thereto. This is discussed later in these
heads of argument.
In GNR 386 for example, these include the construction of facilities or infrastructure, including
associates structures or infrastructure for the above ground storage of 1 000 tons or more but
less than 100 000 tons of ore; the storage of 250 tons or more but less than 100 000 tons of
coal; any purpose in the one in ten year flood line of a river or stream, or within 32 metres from
the bank of a river or stream where the flood line is unknown including canals, channels, dams
and weirs; the off-stream storage of water, including dams and reservoirs, with a capacity of 50
000 cubic metres or more, unless such storage falls within the ambit of the activity listed in item
6 of Government Notice No. R. 387 of 2006; the temporary storage of hazardous waste; the
treatment of effluent, wastewater or sewage with an annual throughput capacity of more than 2
- 32 -
81.
The competent authority identified in the schedules in respect of these
activities was:-
“the environmental authority in the province in which the activity is
to be undertaken unless it is an application for an activity
contemplated in section 24C(2) of the Act, in which case the
competent authority is the Minister or an organ of state with
delegated powers in terms of section 42(1) of the Act, as
amended”.
000 cubic metres but less than 15 000 cubic metres and above ground cableways and
funiculars. Other activities include the dredging, excavation, infilling, removal or moving of soil,
sand or rock exceeding 5 cubic metres from a river, tidal lagoon, tidal river, lake, in-stream dam,
floodplain or wetland, the above ground storage of a dangerous good, including petrol, diesel,
liquid petroleum gas or paraffin, in containers with a combined capacity of more than 30 cubic
metres but less than 1 000 cubic metres at any one location or site, the decommissioning of a
dam where the highest part of the dam wall, as measured from the outside toe of the wall to the
highest part of the wall, is 5 metres or higher or where the high-water mark of the dam covers
an area of more than 10 hectares, the abstraction of groundwater at a volume where any
general authorization issued in terms of the National Water Act, 1998 (Act No. 36 of 1998) will
be exceeded, the construction of a road that is wider than 4 metres or that has a reserve wider
than 6 metres, excluding roads that fall within the ambit of another listed activity or which are
access roads of less than 30 metres long and the expansion of or changes to existing facilities
for any process or activity, which requires an amendment of an existing permit or license or a
new permit or license in terms of legislation governing the release of emissions, pollution or
effluent.
Activities identified in GNR 387 which may take place in the course of reconnaissance,
exploration, production, prospecting, retention or mining operations that are listed as separate
items in the schedules include for example, the construction of facilities or infrastructure,
including associates structures or infrastructure for the above ground storage of a dangerous
good, including petrol, diesel, liquid petroleum gas or paraffin, in containers with a combined
capacity of 1 000 cubic metres or more at any one location or site including the storage of one
or more dangerous goods, in a tank farm; any process or activity which requires a permit or
license in terms of legislation governing the generation or release of emissions, pollution,
effluent or waste and which is not identified in Government Notice No. R. 386 of 2006; the use,
recycling, handling, treatment, storage or final disposal of hazardous waste; the treatment of
effluent, wastewater or sewage with an annual throughput capacity of 15 000 cubic metres or
more; rail transportation, excluding railway lines and sidings in industrial areas and underground
railway lines in mines, but including railway lines, stations and shunting yards. Other activities
include any development activity, including associated structures and infrastructure, where the
total area of the developed area is, or is intended to be, 20 hectares or more and the
construction of a dam where the highest part of the dam wall, as measured from the outside toe
of the wall to the highest part of the wall, is 5 metres or higher or where the high-water mark of
the dam covers an area of 10 hectares or more.
- 33 -
82.
NEMA was amended again by the National Environmental Management
Amendment Act, 62 of 2008 (“the NEMA Amendment Act”) parts of which
came into operation on 1 May 2009.52
83.
The provisions of the NEMA Amendment Act relating specifically to
prospecting, mining, exploration and production and related activities,
however, have not yet come into operation, since they are dependent on
the coming into operation of the Mineral and Petroleum Resources
Development Amendment Act, 49 of 2008 (“the MPRDA Amendment Act”)
which has been assented to by the President but has not yet come into
operation.53
84.
The objective of the proposed amendment Acts, as appears from their
long titles54, is to align the principle Acts in order to provide for one
environmental management system. What is sought through the
amendments is the removal from the MPRDA of all the current provisions
52
53
54
By virtue or Proclamation 27 in GG 32156 of 24 April 2009
It was published for general information in GN 437 in GG 32151 of 21 April 2009 and will come
into operation on a date to be fixed by the President by proclamation in the Gazette.
The object of the NEM: Amendment Act, as appears from its long title is, amongst others, “to
empower the Minister of Minerals and Energy to implement environmental matters in terms of
the National Environmental Management Act, 1998, insofar as it relates to prospecting, mining,
exploration, production or related activities on a prospecting, mining, exploration or production
area and to align environmental requirements in the Mineral and Petroleum Resources
Development Act, 2002, with the National Environmental Management Act, 1998 …”.
The object of the MPRDA Amendment Act, as appears from its long title is, amongst others, “to
make the Minister [of Minerals and Energy] the responsible authority for implementing
environmental matters in terms of the National Environmental Management Act, 1998 and
specific environmental legislation as it relates to prospecting, mining, exploration, production
and related activities or activities incidental thereto on a prospecting, mining, exploration or
production area; to align the Mineral and Petroleum Resources Development Act with the
National Environmental Management Act, 1998 in order to provide for one environmental
management system…”.
- 34 -
in it that have to do with environmental authorisation and management
and the inclusion in NEMA of such provisions as appropriate.55
85.
This objective demonstrates an acknowledgment by the legislature that
there are at present two environmental management regimes – one for
mining related activities, administered in terms of the MPRDA and one for
other activities, administered in terms of NEMA. Accordingly, the
amendment Acts aim to align the environmental management framework
in both acts in order to provide for one environmental management
system.
86.
As far as the provisions relating to prospecting, mining, exploration and
production and related activities are concerned, the NEMA Amendment
Act envisages a transitional period comprising two periods of 18 months
each.
86.1.
The initial 18-month period, which will commence on the
commencement date of the MPRDA Amendment Act, is a
preparatory phase during which government and industry will be
able to prepare for the amendments contemplated in the acts.
86.2.
During the second 18-month period the amendments will become
effective and will result in the environmental management system
prescribed in NEMA being applicable to mining related activities
55
See Dale supra, MPRDA – 317.
- 35 -
albeit that the Minister of Mineral Resources will be the competent
authority for the issuing of environmental authorisations in respect
of mining related activities.
87.
When this second 18-month period lapses, the NEMA Amendment Act
provides that all references to the Minister of Mineral Resources will be
substituted with references to the Minister of Environmental Affairs making
the latter Minister the competent authority for the issuing of environmental
authorisations in respect of mining related activities. 56
88.
The portions of the NEMA Amendment Act which have commenced repeal
and replace 24(8) of NEMA with the following two provisions:
(a)
(b)
56
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 authorization has been
granted in the manner contemplated in section 24L.
Authorisations obtained after any investigation,
assessment and communication of the potential
impacts or consequences of activities, including …
permits obtained under any law for a listed activity or
specified activity in terms of this Act, may be
considered by the competent authority as sufficient for
the purposes of section 24(4), provided that such
investigation, assessment and communication comply
with the requirements of section 24(4)(a) and, where
applicable, comply with section 24 (4) (b).”
See sections 13 and 14 of the NEMA Amendment Act.
- 36 -
89.
The new section 24L provides as follows:
(1)
(2)
57
If the carrying out of a listed activity or specified activity
contemplated in section 24 is also regulated in terms of
another law … the authority empowered under that
other law … to authorise that activity and the
competent authority empowered under Chapter 5 to
issue an environmental authorisation in respect of that
activity may exercise their respective powers jointly by
issuing(a)
separate authorisations; or
(b)
an integrated environmental authorisation.
An
integrated
environmental
authorisation
contemplated in subsection (1) (b) may be issued only
if(a)
the relevant provisions of this Act and the other
law … have been complied with; and
(b)
the environmental authorisation specifies the(i)
provisions in terms of which it has been
issued; and
(ii)
relevant authority or authorities that have
issued it.
(3)
…
(4)
A competent authority empowered under Chapter 5 to
issue an environmental authorisation may regard an
authorisation in terms of any other legislation that
meets all the requirements stipulated in section 24(4)57
Section 24(4)(a) provides as follows:
“Procedures for the investigation, assessment and communication of the potential
consequences or impacts of activities on the environment(a)
must ensure, with respect to every application for an environmental authorisation(i)
coordination and cooperation between organs of state in the consideration
of assessments where an activity falls under the jurisdiction of more than
one organ of state;
(ii)
that the findings and recommendations flowing from an investigation, the
general objectives of integrated environmental management laid down in
this Act and the principles of environmental management set out in section
2 are taken into account in any decision made by an organ of state in
relation to any proposed policy, programme, process, plan or project;
(iii)
that a description of the environment likely to be significantly affected by
- 37 -
(a) and, where applicable, section 24 (4) (b) to be an
environmental authorisation in terms of that Chapter.”
90.
As will be demonstrated below, since the amended section 24(8) of NEMA
continues to apply only to “listed activities”, it does not alter the existing
position in terms of which authorisation for mining related activities is
required only in terms of the MPRDA.
91.
In any event, since neither the provisions in the NEMA Amendment Act
relating to prospecting, mining, exploration and production and related
activities58 nor the relevant items in the schedules to GNR 386 and 387
ever came into operation, the section was not applicable to such activities.
92.
The construction of the Blinkwater Tailings Dam commenced in January
2009 and PPL began pumping tailings into the dam in July 2010. At that
stage the amendments to sections 24(8) and 24L had come into operation
by virtue of the NEMA Amendment Act but the provisions relating to
prospecting, mining, exploration and production and related activities nor
the relevant items in the schedules to GNR 386 and 387 had not come
into operation.
the proposed activity is contained in such application;
investigation of the potential consequences for or impacts on the
environment of the activity and assessment of the significance of those
potential consequences or impacts; and
(v)
public information and participation procedures which provide all interested
and affected parties, including all organs of state in all spheres of
government that may have jurisdiction over any aspect of the activity, with
a reasonable opportunity to participate in those information and
participation procedures;”
In terms of section 14(2) of the NEMA Amendment Act, these provisions will only come into
operation on a date 18 months after the commencement of the MPRDA Amendment Act.
(iv)
58
- 38 -
93.
The EIA regulations, 2006 were repealed with effect from 2 August 2010
and replaced by new EIA regulations (“the EIA regulations, 2010”)
containing
amended
criteria
for
the
obtaining
of
environmental
authorization in terms of section 24 of NEMA and listing new activities in
respect of which such authorization is required.59
94.
Activities requiring a prospecting right or a mining permit or renewal
thereof in terms of the MPRDA and activities requiring a mining right,
exploration right, production right or reconnaissance permit or renewal
thereof in terms of the MPRDA once again require environmental
authorization.60
95.
Significantly, however, the competent authority identified in the EIA
regulations, 2010 who may grant an environmental authorization for
activities requiring a mining right or renewal thereof in cases where the
activity is to be conducted in or on a mining area or is to transform the
area where the activity is to be conducted into a mining area is the
Minister of Mineral Resources.61
96.
The aforesaid mining related activities included in the EIA regulations,
2010 however, have not yet come into operation and thus the sections in
59
The EIA regulations, 2010 were promulgated under sections 24(5), 24M and 44 of NEMA in GNR
543, 454, 545 and 546 in GG 33306 of 18 June 2010.
60 See items 19 and 20 in Appendix 1 of GNR 544 and items 20 – 23 in Appendix 1 of GNR 545.
61 See column 3 in Appendix 1 of GNR 544 and 545.
- 39 -
NEMA requiring environmental authorization for such activities is not yet
applicable.62
Analysis
97.
The pivotal question for present purposes is whether the undertaking of
activities incidental or ancillary to mining which are also “listed activities” in
terms of section 24 of NEMA require, in addition to authorisation in terms
of the MPRDA, separate environmental authorisation in terms of NEMA.
98.
It is PPL’s contention that they do not.
99.
It is clear that the relevant provisions of the MPRDA and its regulations
regulate the exercise of rights granted under that Act and more particularly
the environmental impact of what may loosely be called “mining
operations”. It is also clear that there are numerous instances where such
operations would also constitute “listed activities” as contemplated in
section 24 of NEMA if that Act were to apply.
100.
If NEMA were to apply, however, there is a very real prospect that the
holder of a mining right may face competing and contradictory but
mandatory directions from the designated authority under the MPRDA and
62
See GNR 661 and 662 published in GG 33411 of 30 July 2010, in terms of which the new EIA
regulation came into effect.
- 40 -
the competent authority in terms of NEMA in respect of the same activity.
Indeed, it is almost certain that such conflict will occur from time to time.
101.
Since there are no mechanisms in either the MPRDA or NEMA to resolve
such conflicts, the only way out of the conundrum is to interpret the
MPRDA as conferring exclusive jurisdiction upon the Minister of Mineral
Resources (or his functionaries) to regulate mining operations, including
the environmental consequences thereof.
102.
The question that arises therefore is whether or not such an interpretation
is justified by the language employed by the legislature in the MPRDA. If
on the face of it such an interpretation is justified, the next question would
be whether or not there is anything in NEMA which expressly or by
necessary implication asserts the jurisdiction of the competent authorities
under NEMA in respect of the same activities. If there is, then an attempt
must be made to reconcile the two Acts.
103.
There are two powerful considerations which dictate that a person should
not be subject to conflicting laws or to conflicting directives from those
deriving their powers from such laws. The first is the constitutional
principle of the rule of law. The second is the presumption against
absurdity.
104.
Section 1 of the Constitution of the Republic of South Africa provides that:
- 41 -
“The Republic of South Africa is one sovereign, democratic state
founded on the following values:
(a) ….
(b) …
(c) supremacy of the Constitution and the rule of law.”
105.
Section 2 provides that the “Constitution is the supreme law of the
Republic; law or conduct inconsistent with it is invalid…”.
106.
These founding provisions provide that all conduct by the State is subject
to the Constitution and to the foundational constitutional principle of the
rule of law. The Constitutional Court has consistently held that any
exercise
of
public power inconsistent with
the
rule
of
law is
unconstitutional and is open to constitutional review on this basis.63
107.
The “rule of law” is a principle inherent not only in our common law but
also that of many other constitutional states. Although there are a number
of differing theories concerning the scope and content of the common law
principle, it is generally accepted that at a minimum the rule of law
includes the following essentials:
107.1. that people should be ruled by the law and obey it; and
63
Pharmaceutical Manufacturers of SA; In Re: ex parte President of the Republic of South Africa
and Others 2000(2) SA 674 (CC) ;Mathews, Freedom, State Security and the Rule of Law
(1988) at pp 3-10; Raz, “The Rule of Law and its Virtue” (1977) 93 Law Quarterly Review 195 at
196-198.
- 42 -
107.2. the law should be such that people will be able to be guided by it.
108.
The principle that people will be able to be guided by law (or rely upon the
law to plan their affairs) requires that laws be both prospective and clear.
A person cannot be guided by either a retrospective or a vague, obscure
or imprecise law. Accordingly, two of the essential components of the rule
of law are that laws must be prospective and be clear.64
109.
Laws which subject persons to conflicting requirements or expose them in
respect of the same conduct to potentially conflicting directives or
administrative orders infringe the rule of law because they are vague and
because those subject to them cannot order their affairs consistent with
the legal regime to which they are subject. Where possible laws must be
interpreted so as to avoid that result.
110.
The presumption against absurdity is an articulation of the legitimate
expectation that legislation will be reasonable. 65 Whatever the difficulties
may be in deciding whether or not a particular interpretation is absurd, an
interpretation which permits of conflicting requirements is clearly absurd.
111.
The central argument advanced in this heads of argument is that in the
MPRDA the legislature made a deliberate choice: instead of rendering
those subject to its provisions also subject to the provisions of the pre-
64
New National Party v Government of the Republic of South Africa 1999(3) SA 191 (CC) at para
19.
65 Lourens du Plessis: Re-Interpretation of Statutes 162.
- 43 -
existing provisions of NEMA, it chose to subject them to the principles of
NEMA, as interpreted and applied by the functionaries of the Department
of Mineral Resources. Realising that that approach might give rise to
anomalies, in that the functionaries charged with applying the provisions of
NEMA might interpret those principles or their application differently, it
provided for a form of consultation.66
112.
In short it is PPL’s contention that in the MPRDA the legislature has not
only excluded the jurisdiction of the Minister of Water and Environmental
Affairs in respect of mining activities governed by the MPRDA, it has also
placed a gloss on how NEMA is to be applied to such activities.
113.
That approach is entirely inconsistent with an interpretation of the MPRDA
which acknowledges the direct application of NEMA. Why, one may ask,
should the legislature have made such careful provision for the indirect
application of NEMA if that Act were directly applicable? If on a proper
interpretation of the MPRDA, the legislature did not intend NEMA to apply
directly, then effect must be given to that intention unless a contrary
intention can be discerned from the relevant provisions of NEMA, more
particularly the amendments introduced after the coming into force of the
MPRDA.67
66
67
Section 40 of the MPRDA set out in full in footnote 29 above.
Compare in this regard section 24(9) of the National Forest Act 84 of 1998 which provides as
follows:
- 44 -
114.
In PPL’s submission section 24 of NEMA (and more particularly
subsections 24(1), (2)(a) and (8) do not, either directly or by necessary
implication, contradict the interpretation set out above of the MPRDA. The
test may be formulated as follows: if the MPRDA had stated expressly that
the provisions of NEMA did not apply directly, would the provisions of
section 24 of NEMA give rise to a conflict? In PPL’s submission the
answer is in the negative. The power conferred upon the Minister of Water
and Environmental Affairs (or his or her provincial counterpart) to list
activities for which authorisation must be obtained must simply be read as
excluding activities governed by the MPRDA. The provision in section
24(8) that the acquisition of authorisations under other laws does not
absolve an applicant from obtaining an authorisation under NEMA does
not take the matter further, since that subsection only applies where an
authorisation under NEMA is required. In other words, the subsection begs
the very question posed.
“(9)
Nothing in this Act prohibits the grant in terms of any law of a right to prospect for,
mine or dispose of any mineral as defined in the Minerals Act, 1991 (Act 50 of
1991) … in a State Forest but(a) the holder of such a right may not do anything which requires a licence in
terms of section 23 without such a licence; and
(b) the grant of any such right after the commencement of the National Forest and
Fire Laws Amendment Act, 2001, must be made subject to the principles set
out in section 3(3) of this Act.”
See also section 48 of the National Environmental Management: Protected Areas Act 57 of
2003 which provides as follows:
“(1)
Despite other legislation, no person may conduct commercial prospecting or
mining activities –
(a)
in a special nature reserve, national park or nature reserve;
(b)
in a protected environment without the written permission of the Minister
and
the Cabinet member responsible for minerals and energy
affairs; or
(c)
in a protected area referred to in section 9(b), (c) or (d).”
- 45 -
115.
It goes without saying that the fact that the Minister of Water and
Environmental Affairs may under section 24(2) of NEMA have identified
certain activities which are subject to regulation under the MPRDA is
neither here nor there. Such an administrative act would simply reflect the
Minister’s opinion as to the extent of his or her powers. One cannot
interpret a provision of an Act conferring a power upon a functionary by
looking at what powers the functionary has sought to exercise. That would
be to allow the executive to usurp the powers of the legislature.
116.
In light of the fact that the management of the environmental impacts of
mining have already been comprehensively dealt with in the MPRDA and
the MPRDA regulations, which –
116.1. expressly incorporate the environmental management principles
contained in section 2 of NEMA into all decisions regarding mining
operations and operations incidental or ancillary thereto; and
116.2. subject the grant and exercise of a mining right to an
environmental management programme in respect of which
consultation with all State departments which administer laws
relating to the environment is required and which itself must give
effect to
116.2.1.
the environmental management principles contained in
section 2 of NEMA;
- 46 -
116.2.2.
the
objectives
of
integrated
environmental
management laid down in Chapter 5 of NEMA; and
116.2.3.
the minimum requirements contained in section 24(7)
of NEMA68,
it is PPL’s submission that separate environmental authorisation in
terms of NEMA for mining activities or activities incidental or
ancillary thereto is not required.
117.
If PPL is correct in contending that the MPRDA confers exclusive
jurisdiction upon the functionaries of the Department of Mineral Resources
in relation to mining activities which would otherwise also fall under NEMA,
then the proviso to section 24(2) of NEMA takes the matter no further,
since it assumes that the activity also falls under the jurisdiction of NEMA.
Thus the proviso to section 24(2) (which, subject to the amendment
mentioned above) preceded the MPRDA, cannot confer upon the Minister
of Water and Environmental Affairs (or his or her provincial counterpart)
the authority to identify mining or activities incidental or ancillary thereto as
activities which require separate environmental authorisations to be issued
in terms of NEMA as authorisation for these activities, including the
management of their environmental impacts, is comprehensively and
exclusively regulated in terms of the MPRDA.
68
Now section 24(4) of NEMA.
- 47 -
118.
It follows that the Minister of Water and Environmental Affairs (or his or her
provincial counterpart) is also not authorised to identify a competent
authority to adjudicate applications for environmental authorisations in
respect of such activities, since the MPRDA mandates responsibility for
the management of the environmental impacts of mining to the Minister of
Mineral Resources or his or her delegate.
119.
Since environmental authorisation is only required in terms of section 24 of
NEMA for “listed activities”, section 24(8) of NEMA does not find
application to mining or operations incidental or ancillary thereto as these
activities do not require environmental authorisation in terms of NEMA and
cannot therefore constitute “listed activities”.
120.
PPL’s contentions in relation to section 24 is informed by the application of
the interpretational maxim generalia specialibus non derogant in terms of
which “subsequent, general legislation will only revoke prior, specific
legislation in pari materia when the former professes to regulate the
subject matter with which it deals exhaustively”. 69
69
See Lourens du Plessis, Re-Interpretation of Statutes, p73. The application of the maxim was
considered by Gutsche J in R v Gwantshu 1931 EDL 29 at 31. “ ‘When the Legislature has
given attention to a separate subject and made provision for it the presumption is that a
subsequent general enactment is not intended to interfere with the special provision, unless it
manifests that intention very clearly. Each enactment must be construed in that respect
according to its own subject-matter and its own terms. This case is a peculiarly strong one for
the application of the general maxim’ per Lord Hobhouse delivering the judgment of the Privy
Council in Barker v Edger [1898] A.C. at p. 754). ‘Where general words in a later Act are
capable of reasonable and sensible application without extending them to subjects specially
dealt with by earlier legislation, that earlier and special legislation is not to be held indirectly ...
altered ... merely by force of such general words, without any indication of a particular intention
to do so. In such cases it is presumed to have only general cases in view and not particular
- 48 -
121.
Even if PPL is wrong in its interpretation of section 24 of NEMA, however,
it is nevertheless clear from the regulations themselves that they did not
intend to regulate activities incidental or ancillary to mining prior to the
coming into operation of items 8 and 9 of GNR 386 and items 7 and 8 of
GNR 387 (or items 19 and 20 in GNR 544 and items 20 – 23 in GNR 545).
122.
As mentioned above, items 8 and 9 of GNR 386 and items 7 and 8 of
GNR 387 never came into effect and items 19 and 20 in GNR 544 and
items 20 – 23 in GNR 545 (the EIA regulation 2010) have not yet come
into effect.
123.
It is clear that the Minister of Water and Environmental Affairs has, in
terms of section 24(2) and 24D of NEMA, decided not to require
environmental authorisation (in terms of NEMA) for, amongst others,
activities which require a mining right in terms of the MPRDA which
include activities incidental or ancillary thereto70, before these items in the
annexures to the EIA regulations, 2010 come into operation. The
Minister’s delay may well be informed by concerns regarding whether or
not the Minister is in fact authorised to list such activities given the
provisions of the MPRDA discussed above.
70
cases which have been already otherwise provided for by the special Act. Having already given
its attention to the particular subject and provided for it the Legislature is reasonably presumed
not to alter that special provision by a subsequent general enactment unless that intention be
manifested in explicit language ... (Maxwell, Interpretation of Statutes, 7th ed. 153). See also
Chirwa v Transnet Ltd and Others 2008 (4) SA 367 (CC) 400 – 404 and Gentiruco AG v
Firestone SA (Pty) Ltd 1972 (1) SA 589 (A) at 603B-C.
By virtue of the definition of “mining operations” in section 1 of the MPRDA and the common law
meaning of the terms as discussed in paragraphs 5.5 – 5.7 above.
- 49 -
The Maccsand judgment
124.
The contentions made above were not considered by His Lordships Mr
Justice Davis and Mr Justice Baartman in the matter of City of Cape Town
and Maccsand (Pty) Ltd and Others.71
125.
In that matter, the learned Judges, reached the conclusion that
authorization to undertake mining related activities in terms of the MPRDA
does not obviate the need also to obtain an environmental authorization in
terms of NEMA where such activities are also “listed activities” in terms of
the EIA regulations promulgated in terms of NEMA.
126.
The applicants’ rely on this finding in the Maccsand matter to fortify their
contention that the construction and deposition of tailings into the
Blinkwater Tailings Dam (which comprise several “listed activities” in terms
of the EIA regulations) in the absence of an environmental authorization
issued in terms of NEMA is unlawful.
127.
Not only are the facts in Maccsand materially different from the facts at
issue in the present matter, but it is evident that PPL’s contention that
mining related activities cannot constitute “listed activities” for the
purposes of NEMA, was never put to the learned judges in Maccsand and
was consequently not considered by them. In the result, the judgment in
Maccsand does not address PPL’s contentions at all.
71
2010 (6) SA 63 (WCC).
- 50 -
128.
Maccsand was concerned with the exercise of a mining right and a mining
permit granted in terms of the MPRDA in respect of certain land owned by
the City of Cape Town and located adjacent to private homes and
between two schools in a residential suburb of Mitchell’s Plain.
129.
The central issue in Maccsand was whether the grant of a mining permit or
mining right in terms of the MPRDA exempts the holder from having to
obtain authorisation for its mining activities in terms of laws which regulate
the use of that land, in particular the provisions of the Land Use Planning
Ordinance (“LUPO”) and NEMA.
130.
Pivotal to the Court’s finding was an evaluation of sections 24(8) and 24L
of NEMA (as amended by the NEMA Amendment Act referred to above).
At page 79 of the judgment, Davis J stated as follows:
“These provisions deal expressly with the question whether the obtaining
of authorisations for activities under other laws, which include the
processes for the investigation … NEMA, if the activities are listed or
specified under NEMA. In my view, these provisions make clear,
notwithstanding … stipulated in section 24(4).
The further difficulty with an argument … for activities listed or specified in
terms of section 24(2) operates “notwithstanding any other Act”.”
[Emphasis added.]
131.
It is manifest from these paragraphs that the question of whether mining
activities may be identified by the Minister of Water and Environmental
Affairs as “listed activities” for which environmental authorisation in terms
- 51 -
of NEMA is required, was never put to the Court and as a result was never
considered by the Court.
132.
Having commenced from the assumption that “listed activities” can include
mining activities, Davis J’s analysis is confined to an examination of
whether the activities undertaken by Maccsand fell within the ambit of the
listed activities concerned as defined in the EIA regulations. Finding that
they did, Davis J was compelled to conclude that an environmental
authorisation in terms of NEMA was required for the undertaking of the
activity.72
133.
Since Maccsand does not address PPL’s contention that mining activities
cannot constitute “listed activities” for the purposes of NEMA, it cannot be
relied on to support the proposition that notwithstanding authorisation in
terms of the MPRDA and in particular the approval of an EMP in terms of
that Act, environmental authorisation is also required in terms of NEMA.
134.
Maccsand is also distinguishable from the present dispute on the facts. As
mentioned above, Maccsand’s mining activities took place in a residential
suburb of Mitchell’s Plain. Notwithstanding its objection to the grant of the
mining right and permit to Maccsand, the City of Cape Town was only
notified that the right and permit had been granted two weeks before
mining operations commenced and was further not notified that such
operations had commenced. Furthermore, it appears from the judgment
72
At page 80A.
- 52 -
that no environmental impact assessment had been undertaken before the
rights were granted.73
135.
By contrast, PPL’s mining activities in the Mokopane can be traced back to
a Notarial Deed of Cession of Mineral Rights granted to the First
Respondent in 1926 by the then Chief of the Langa Tribe in respect of the
Farm Zwartfontein, which farm is adjacent to the Farm Blinkwater. PPL’s
activities on the Farm Blinkwater take place in an area which has no
dwellings on it and which was partially utilised by the Sekuruwe
community for grazing and farming purposes. Extensive consultation with
the community preceded the conclusion of the lease over the area and the
commencement of construction activities associated with the Blinkwater
Tailings
Dam.74
The
environmental
impacts
associated
with
the
construction and use of the dam were comprehensively addressed in an
amendment to PPL’s EMP, which amendment was approved by the
Minister of Mineral Resources in 2003.75 Furthermore, PPL’s Integrated
Water and Waste Management Plan, which was developed pursuant to its
Water Use Licence application, addresses all risks which may be
associated with its mining activities, including the Blinkwater Tailings
Dam.76 The significance of these factors, from a practical perspective, is
that the environmental impact of the construction and use of the
Blinkwater Tailings Dam is not unregulated – on the contrary it is
extensively regulated and monitored by the provisions both of the MPRDA
73
At page 80D.
AA 33, p333.
75 See annexure “EE2”, p380.
76 AA 73.4, p357.
74
- 53 -
(and PPL’s amended EMP approved in terms thereof) and the National
Water Act.
The construction of and deposition of tailings into the Blinkwater
Tailing Dam is not in contravention of the National Water Act, 1998
(“the NWA”)
136.
Annexure EE5 to PPL’s answering affidavit77 contains an integrated Water
Use Licence issued by the Department of Water Affairs and Forestry to
PPL on 12 March 2007 in terms of the National Water Act 36 of 1998.
137.
This licence expressly authorises the construction and operation of the
Blinkwater Tailings Dam on the Farm Blinkwater and further authorises the
disposal of a maximum quantity of 11 311 482m 3 of slurry per annum into
the dam.78
138.
The construction and use of the Blinkwater Tailings Dam is, accordingly,
not in contravention of the National Water Act as is alleged by the
applicants. On the contrary, the construction and use of the Dam is in
accordance with the Water Use Licence granted to PPL and is thus lawful.
139.
Furthermore, since the Blinkwater Tailings Dam does not have a capacity
exceeding 50 000 cubic meters, no additional licence is required for its
construction or use in terms of the Dam Safety Regulations published in
77
p392.
The integrated Water Use Licence may be found at page 392. See specifically clause 3 on page
2 and condition 1.1.1 on page 5 which specifically authorises the disposal of slurry into the
Blinkwater Tailings Dam and clause 2 on page 6 which refers to the construction and operation of
the Blinkwater Tailings Dam.
78
- 54 -
Government Notice R1560 of 25 July 1986. For the same reasons, the
provisions of Chapter 12 of the National Water Act, which deal with dams
with a safety risk, are also not applicable to the Blinkwater Tailings Dam.
The applicants’ allegations to the contrary are thus without merit.
The construction of and deposition of tailings into the Blinkwater
Tailing Dam is not in contravention of the MPRDA
140.
The applicants’ allege that the construction of and deposition of tailings
into the Blinkwater Tailings Dam has not been and cannot be authorized in
terms of the MPRDA because the Farm Blinkwater does not fall within the
area covered by PPL’s mining right granted in terms of the MPRDA on 23
July 2010.79
141.
The applicants point further to the fact that at the time construction of the
dam commenced in January 2009, PPL’s rights were similarly constrained
in that the area covered by PPL’s mining licence (which had been granted
in terms of section 9 of the Minerals Act 50 of 1991 on 7 November 2003)
also did not include the Farm Blinkwater.80
142.
These allegations, however, are based on the incorrect assumption that
the MPRDA and the Minerals Act, 1991 only find application to the area in
respect of which a mining right (in the case of the MPRDA) or a mining
79
FA 68, p38 and see para 260, p181 of the founding affidavit to the review application,
incorporated by reference into the founding affidavit in the present application.
80 RA 22, p435.
- 55 -
authorisation (in the case of the Minerals Act) has been granted. This is
not the case.
143.
The Minerals Act, which was the applicable legislation at the time PPL
sought and obtained consent to proceed with the construction of the
Blinkwater Tailings Dam, defined a “mining area” as follows:
“the area comprising the subject of any prospecting permit or mining
authorisation, including any adjacent surface of land under the
control of the holder of such permit or authorisation and which he is
entitled to use in connection with the operations performed or to be
performed under such permit or authorisation.”
144.
Since the deposition of tailings is clearly incidental to PPL’s mining
operations on properties adjacent to the Farm Blinkwater and since PPL is
authorized to use the Farm Blinkwater for the construction and use of the
Blinkwater Tailings Dam by virtue of the notarial lease concluded on 19
January 2009, the Farm Blinkwater falls within the mining area covered by
the mining authorisation granted to PPL in 2003 in terms of the Minerals
Act.
145.
The MPRDA defines a “mining area” as follows:
“(i)
In relation to a mining right or a mining permit, means the area
for which that right or permit is granted;
(ii)
in relation to any environmental, health, social and labour
matter and any latent or other impact thereto, includes -
- 56 -
(a)
any adjacent on non-adjacent surface of land on which
the extraction of any mineral and petroleum has not been
authorized in terms of this Act but upon which related or
incidental operations are being undertaken and, including –
(i)
(ii)
any area connected to such area by means of
any road, railway line, power line, pipeline, cable
way or conveyor belt; and
any surface of land on which such road, railway
line, power line, pipeline or cable way is located;
and
(b)
all buildings, structures, machinery, mine dumps or
objects situated on or in that area which are used for the
purpose of mining on the land in question.
146.
The extent of the right granted to PPL is further determined by the terms
and conditions of the mining right granted to it in terms of the MPRDA. In
the definition section of PPL’s Mining Right, “Mining Area” is stated to be
“as defined in the Act (being a reference to the MPRDA) and includes any
additional area of environmental liability as may be reflected on the
Environmental Management Programme relating to this right”.
147.
As mentioned above, PPL’s Environmental Management Programme
specifically authorises the construction and use of the Blinkwater Tailings
Dam and accordingly the “mining area” in terms of which PPL’s Mining
Rights may be exercised includes the Farm Blinkwater.
148.
As previously mentioned, section 5(3) of the MPRDA authorises PPL (as
the holder of a mining right) to, amongst others -
- 57 -
148.1.
enter the land to which the right relates and build, construct or lay
down any surface or underground infrastructure required for the
purposes of mining;
148.2. subject to the National Water Act, use water on such land for
mining purposes; and
148.3. carry out any other activity incidental to mining operations which
activity does not contravene the provisions of the MPDRA.
149.
The construction and use of the Blinkwater Tailings Dam clearly falls within
the entitlements set out in section 5(3).
150.
Paragraph 7.2 of PPL’s Mining Right provides that mining operations in
the mining area must be conducted in accordance with the Mining Work
Programme and an approved Environmental Management Programme.
PPL’s operations on the Farm Blinkwater are in accordance both with its
approved Mining Works Programme and its approved Environmental
Management Programme.81
The review application has no or little prospects of success
151.
In the review application, the applicants seek an order reviewing and
setting aside the decision of the Minister of Rural Development and Land
81
EE6, p422, AA 31, p329.
- 58 -
Reform to grant a notarial lease to PPL in respect of a portion of the Farm
Blinkwater.82 In addition, the applicants’ seek an order declaring the lease
to be unlawful and of no force and effect.
152.
The basis of the relief sought in the review is a series of alleged
“illegalities and irregularities” related mainly to the community land rights
holders’ resolution of 9 December 2006. The applicants contend that the
resolution was improperly adopted and did not authorise the conclusion of
the lease over the Farm Blinkwater. Consequently, so the applicants’
allege, the Minister of Rural Development and Land Reform ought not to
have relied on the resolution in deciding to grant the lease.83
153.
PPL commenced a consultation process with the Sekuruwe community in
December 2005 when it became evident that its mining operations would
require that part of Blinkwater be used for the purposes of establishing the
Blinkwater Tailings Dam and for storing other residue derived from its
mining operations on the adjoining farms.
154.
The consultation process was facilitated through a section 21 company
incorporated by the community duly assisted by PPL. The applicants
challenge the legitimacy of the section 21 company stating that it was not
representative of their interests.84
82
Notice of Motion, Review application, p77
Founding affidavit to the review application 128 – 184, pp130 – 150.
84 AA 33, pp331 – 3336, RA 26 – 39, pp 438 – 443.
83
- 59 -
155.
Following numerous meeting between the community and PPL, which took
place between March and December 2006, a meeting was held on 9
December 2006 at which the community unanimously decided to
relinquish such rights as they exercised to the Farm Blinkwater in favour of
PPL in exchange for compensation.
156.
The process of consultation with the community was conducted
transparently, democratically and with the utmost propriety and resulted in
the conclusion of the lease agreement in accordance with the valid
community land rights holders’ resolution of 9 December 2006.
157.
Insofar as the review application is based on alleged “illegalities and
irregularities” related to the aforesaid resolution of 9 December 2006, it is
PPL’s contention that the application has no reasonable prospects of
success.
No irreparable harm
158.
The applicants allege that the dumping of tailings into the Blinkwater
Tailings Dam will have irreversible consequences if it is not stopped.85
These consequences include:
158.1. that the land will be rendered unsuitable for agricultural or any
other purposes;86
85
FA 25, p19.
- 60 -
158.2. that water resources may become polluted by substances leaching
through the bottom of the dam;87
158.3. that health risks may arise from exposure to dust or water pollution
emanating from the dam;88 and
158.4. that success in the review application will become academic if
urgent interdictory relief is not granted.89
159.
The applicants’ allegations that the deposition of tailings into the
Blinkwater Tailings Dam may have certain environmental consequences
or may result in the affected land not being suitable for grazing and
farming purposes ignores two important facts:
159.1. The first is that the lease agreement specifically allows PPL to
construct and use the land for the construction and use of the
Blinkwater Tailings Dam in return for compensation which has
already been paid.
159.2. The second is that the environmental consequences that may
result from the deposition of tailings into the dam have been
expressly authorized through the approval of PPL’s amended EMP
granted in terms of the MPRDA and the Water Use Licence
86
FA 25 and 81, p19 and 43.
FA 83, p44.
88 FA 26 - 28, pp19 – 21; RA 9, p426.
89 FA 25 and 83, p19 and 44.
87
- 61 -
granted to PPL in terms of the National Water Act, both of which
PPL is in full compliance. (The environmental impacts associated
with the dam were further authorized through the approval by the
Department of Water Affairs of PPL’s Integrated Water and Waste
Management Plan submitted by PPL pursuant to its Water Use
Licence.)
160.
The fact that the Water Use Licence was granted and the amended EMP
was approved (and that PPL is in compliance therewith) demonstrates that
the anticipated impacts of the construction and use of the Blinkwater
Tailings Dame can be and are being mitigated to acceptable levels.
161.
The applicants’ concerns with the health risks associated with the use of
the Blinkwater Tailings Dam are based on a misunderstanding of the
method of construction of the Blinkwater Tailings Dam and also on an
extract of a report (which in any event is hearsay) produced in respect of
Impala Platinum’s Marula Mine, which cannot be applied to the Blinkwater
Tailings Dam.90
162.
Furthermore any harm that the applicant’s anticipate as a consequence of
the construction and use of the Blinkwater Tailings Dam has already
occurred with most of the area inside the fenced-off leased area having
already been utilised for the construction of the dam and supporting
infrastructure. Construction of the Blinkwater Tailings Dam is complete and
90
FA 27, p20; AA 48, p344.
- 62 -
deposition of tailings into the dam commenced on 15 July 2010. To date
approximately 1,2 million tons of tailings have already been pumped into
the dam.91
163.
The community has been provided with a borehole and a water tank,
together with compensation for the land in the amount of approximately
R4,5 million in return for voluntarily relinquishing such rights as they
exercised in and over the Farm Blinkwater.92
The balance of convenience is in favour of PPL
164.
Each month approximately 600 kilotons of tailings are pumped into the
Blinkwater Tailings Dam, while a further 385 kilotons are pumped into an
older tailings dam on the Farm Vaalkop. The Vaalkop Tailings Dam alone
cannot accommodate the deposit of tailings from PPL’s North and South
concentrator plants as it is too small.93
165.
Should the relief sought by the applicants in this application be granted,
either the South or North concentrator plant will need to be shut down in
the very near future. This will have enormous financial consequences for
PPL (estimated at approximately R22,274,000.00 per day) for which the
91
AA 18, p321
AA 38, p339, RA 43, p446.
93 AA 47, p342; RA 50, p447
92
- 63 -
applicants will not be able to compensate PPL should the review ultimately
fail.94
166.
The applicants will not sustain any financial or other loss should tailings
continue to be deposited into the Blinkwater Tailings Dam since they have
voluntarily relinquished, together with the other members of the Sekuruwe
Community, such informal rights of grazing, farming and access which
they might have exercised, by way of the Land Rights’ Holders resolution
referred to above. Furthermore, any harm that may result from the
disposing of tailings into the dam is, in any event, statutorily authorised
and thus lawful.
167.
It is accordingly contended that the balance of convenience favours PPL.
Alternative remedy
168.
To the extent that the applicants retain grazing, farming, access rights
over and in respect of the Farm Blinkwater and to the extent that they may
sustain any damage as a result of the construction and use of the
Blinkwater Tailings Dam, PPL would clearly be in a position to meet any
claim for damages. The applicants thus have an alternative remedy to
seeking interdictory relief.
94
AA 47, p343; RA 51, p447
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Costs
169.
Whilst the applicants maintain that they are acting in the public interest
and on a genuine apprehension that harm is imminently likely to the
environment,95 PPL contends that thy have not acted reasonably in
launching this application on an urgent basis.
170.
Whilst it is not disputed that as a general rule in constitutional litigation an
unsuccessful party against the state ought not to be ordered to pay costs 96
there are circumstances where the conduct of a litigant deserves
censure.97
171.
PPL contends that this application is one that deserves such censure
particularly when viewed in the context of the eleven previous urgent
applications that were launched by the applicants’ attorney (Spoor) against
PPL in 2006 all of which were dismissed for want of urgency.98
95
FA 91, p47.
See Trustees for the time being of the Biowatch Trust v Registrar, Genetic Resources and
Others 2009 (6) SA 232 (CC) and Landev (Pty) Ltd v Black Eagle Project, Roodekrans and Others
at para [15] Unreported case (No: 6085/07) South Gauteng High Court 1 March 2010. See also
Silvermine Valley Coalition v Sybrand van der Spuy Boerderye and Others 2002 (1) SA 478 (C) at
p491 and 493.
97 See Affordable Medicines Trust and Others v Minister of Health and Another 2006 (3) SA 247
(CC) at 297B and Landev (supra) at [15(h)]. See also Wildlife and Environmental Society of south
Africa v MEC for Economic Affairs, Environment and Tourism, Eastern Cape and Others 2005 (6)
SA 123 (E) at 143.
98 AA 33.5, p332.
96
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Conclusion
172.
In the premises, PPL contends that this application ought to be dismissed
with costs such costs to include the costs of two counsel.
CDA Loxton SC
P Lazarus
First Respondent’s Counsel
18 November 2010