DIRECTOR: MINERAL DEVELOPMENT, GAUTENG REGION, AND
ANOTHER v SAVE THE VAAL ENVIRONMENT AND OTHERS 1999 (2) SA
709 (SCA)
1999 (2) SA p709
Citation
1999 (2) SA 709 (SCA)
Case No
133/98
Court
Supreme Court of Appeal
Judge
Mahomed CJ, Howie JA, Marais JA, Olivier JA, Madlanga JA
Heard
February 18, 1999
Judgment
March 12, 1999
Counsel
SJ Grobler (with him LGF Putter) for the first appellant
GL Grobler (with him GJ Marcus and LJ Bekker) for the second appellant
JR Gautschi (with him PA Meyer) for the respondents
Annotations
Link to Case Annotations
Flynote : Sleutelwoorde
Environmental law - Protection of the environment - Right to protection of
the environment in terms of s 24 of Constitution of the Republic of South
Africa Act 108 of 1996 - Audi alteram partem rule applicable to application
for mining licence in terms of s 9 of Minerals Act 50 of 1991 - Interested
parties, including environmental association of property owners in affected
area, entitled to be heard in such application - Hearing not necessarily
formal, but interested parties to be notified of application and given
opportunity to raise their objections in writing.
Environmental law - Protection of the environment - Change to legal and
administrative approach to environmental concerns to come with change in
ideological climate of country.
Mines and minerals - Mining licence - Application for in terms of s 9 of
Minerals Act 50 of 1991 - Audi alteram partem rule applicable to such
application - Nothing in s 9 or rest of Act excluding application of rule either
expressly or by necessary implication - No considerations of public policy
militating against its application - Interested parties, including environmental
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by any means, electronic or mechanical, without permission.
association of property owners in affected area, entitled to be heard in such
application - Application of audi rule indicated by enormous damage mining
can do to environment and ecological systems - Constitution of the Republic
of South Africa Act 108 of 1996, by including environmental rights in s 24 as
fundamental,
justiciable
human
rights,
requiring
environmental
considerations to be accorded appropriate recognition and respect in
administrative processes in South Africa.
1999 (2) SA p710
Voluntary association - Prohibited association - Environmental association
with more than 20 members not registered as company - Object of
association to assist members to protect and maintain environmental
integrity of area where they owned property - Association objecting to grant
of mining licence in area, inter alia on ground that mining would have
negative effect on property market and values - Prohibition in s 30(1) of
Companies Act 61 of 1973 against formation of associations of more than 20
persons for purpose of 'carrying on any business that has for its object the
acquisition of gain' - Association could not be said to be trading or carrying
on business with object of acquisition of gain - Association not illegal.
Headnote : Kopnota
A voluntary association of more than 20 persons and which is not registered as a
company in terms of the Companies Act 61 of 1973 and which has as its object,
according to its written constitution, to assist its members to protect and
maintain the environmental integrity of an area in which its members own
property is not a prohibited association as contemplated by s 30(1) of the
Companies Act because it has objected to the grant of a mining licence for opencast mining in the area on the ground, inter alia that the operation of the
proposed open-cast mine would have a permanent negative effect on the
property market in the vicinity, with a serious diminution of property values. It
cannot be said that the association, in so doing, was trading or 'carrying on any
business that has for its object the acquisition of gain' within the meaning of
those words in s 30(1) of the Companies Act. Such an association is not illegal.
(Paragraphs [4], [6], [7] and [8] at 714B - C/D, 715E/F - F/G and 715I/J 716B/C, paraphrased.)
The audi alteram partem rule applies when an application for a mining licence is
made to the Director of Mineral Development in terms of s 9 of the Minerals Act
50 of 1991. Such a hearing need not necessarily be a formal one, but interested
parties, including interested environmental associations, should at least be
notified of the application and be given an opportunity to raise their objections in
writing. If necessary, a more formal procedure can then be initiated. Nothing in s
9 or in the rest of the Act either expressly or by necessary implication excludes
the application of the rule, and there are no considerations of public policy
militating against its application. On the contrary, the application of the rule is
indicated by virtue of the enormous damage mining can do to the environment
and ecological systems. What has to be ensured when application is made for the
issuing of a mining licence is that development which meets present needs will
take place without compromising the ability of future generations to meet their
own needs. The Constitution of the Republic of South Africa Act 108 of 1996 in s
24, by including environmental rights as fundamental, justiciable human rights,
by necessary implication requires that environmental considerations be accorded
appropriate recognition and respect in the administrative processes in our
country. Together with the change in the ideological climate must also come a
change in our legal and administrative approach to environmental concerns.
(Paragraph [20] at 718I/J - 719D/E.)
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The decision in the Witwatersrand Local Division in Save the Vaal Environment
and Others v Director: Mineral Development, Gauteng Region, and Another
confirmed.
Cases Considered
Annotations
Reported cases
Du Preez and Another v Truth and Reconciliation Commission1997 (3) SA 204
(A): referred to
1999 (2) SA p711
Mitchell's Plain Town Centre Merchants Association v McLeod and Another1996
(4) SA 159 (A): dictum at 169I - 170B applied
Smith v Anderson (1880) 15 ChD 247 (CA): dictum at 273 applied
Van Wyk NO v Van der Merwe1957 (1) SA 181 (A): dictum at 188B - 189A
applied.
Statutes Considered
Statutes
The Companies Act 61 of 1973, s 30(1): see Juta's Statutes of South Africa 1998
vol 2 at 1-132
The Constitution of the Republic of South Africa Act 108 of 1996, s 24: see Juta's
Statutes of South Africa 1998 vol 5 at 1-146
The Minerals Act 50 of 1951, s 9: see Juta's Statutes of South Africa 1997 vol 4
at 1-145.
Case Information
Appeal from a decision in the Witwatersrand Local Division (Cassim AJ). The facts
appear from the judgment of Olivier JA.
S J Grobler (with him L G F Putter) for the first appellant.
G L Grobler SC (with him G J Marcus SC and L J Bekker) for the second appellant.
J R Gautschi SC (with him P A Meyer) for the respondents.
In addition to the authorities cited in the judgment of the Court, counsel for
various parties referred to the following:
Administrator, Cape, and Another v Ikapa Town Council1990 (2) SA 882 (A)
Administrator, Natal, and Another v Sibiya and Another1992 (4) SA 532 (A)
Administrator, Transvaal, and Others v Traub and Others1989 (4) SA 731 (A) at
748G, 756G - I, 758D - 759D, 761, 762F - 763J
Administrator, Transvaal, and Others v Zenzile and Others1991 (1) SA 21 (A) at
34J - 35B, 39B - J
Apex Mines Ltd v Administrator, Transvaal1986 (4) SA 581 (T) at 590
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(ISBN: 9780702185458)
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by any means, electronic or mechanical, without permission.
Assagay Quarries (Pty) Ltd v Hobbs and Another1960 (4) SA 237 (N) at 243
Attorney-General, Eastern Cape v Blom and Others1988 (4) SA 645 (A)
Attorney-General of Hong Kong v Ng Yuen Shiu [1983] 2 All ER 346 (PC)
Barrett NO v Macquet1947 (2) SA 1001 (A) at 1016
Bingham v City Council of Johannesburg 1934 WLD 180 at 184
Bohlokong Black Taxi Association v Interstate Bus Lines (Edms) Bpk1997 (4) SA
635 (O)
Bowman NO v De Souza Roldao1988 (4) SA 326 (T) at 327C et seq
Corium (Pty) Ltd and Others v Myburgh Park Langebaan (Pty) Ltd and
Others1995 (3) SA 51 (C)
Council of Civil Service Unions and Others v Minister for the Civil Service [1984] 3
All ER 935 (HL) at 943j - 944a
Douglas Colliery Ltd v Bothma and Another1947 (3) SA 602 (T) at 610 - 12
Elektrisiteitsvoorsieningskommissie v Fourie1988 (2) SA 627 (T) at 641C - 642I
Erasmus v Afrikander (Proprietary) Mines Ltd1976 (1) SA 950 (W) at 960
Esterhuyse v Jan Jooste Family Trust and Another1998 (4) SA 241 (C) at 253H 254D
1999 (2) SA p712
Finbro Furnishers (Pty) Ltd v Registrar of Deeds, Bloemfontein, and Others1985
(4) SA 773 (A) at 807H - 808B
Foulds v Minister of Home Affairs and Others1996 (4) SA 137 (W)
Government of the Republic of South Africa v Oceana Development Investment
Trust plc1989 (1) SA 35 (T) at 36H - I
Gluckman v Solomon 1921 TPD 335 at 338
Hudson v Mann and Another1950 (4) SA 485 (T) at 488C - G
Jaga v Dönges NO and Another; Bhana v Dönges NO and Another1950 (4) SA
653 (A) at 662
Kakamas Bestuursraad v Louw1960 (2) SA 202 (A) at 216F - H, 217 - 18, 226,
233 - 4
Laurence v Verhoef and Others NNO1993 (2) SA 328 (W) at 335, 336
Le Roux and Others v Loewenthal 1905 TS 742 at 745
Levin v Vogelstruis Estates and Gold Mining Co Ltd 1921 WLD 66 at 69
London and SA Exploration Co v Rouliot (1891) 8 SC 75 at 97 - 8
Malherbe v Ceres Municipality1951 (4) SA 510 (A) at 517D - E, 518A - B
Medforum Hospitaal (Edms) Bpk v Departementshoof, Departement Gesondheid
en Welsyn: Administrasie Volksraad en Andere1994 (4) SA 852 (T) at 864, 865
This CD may be used only in conjunction with Michael Kidd Environmental Law 2 ed (Juta 2011)
(ISBN: 9780702185458)
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by any means, electronic or mechanical, without permission.
Morrison v Standard Building Society 1932 AD 229
Municipal Council of Bulawayo v Bulawayo Waterworks Co Ltd 1915 AD 611 at
625, 631 - 32
Natal Navigation Collieries and Estate Co Ltd v Minister of Mines and Another1955
(2) SA 698 (A) at 705
Neebe v Registrar of Deeds 1911 TPD 311 at 315
Nolte v Johannesburg Consolidated Investment Co Ltd 1943 AD 295 at 315, 316
Patel v Witbank Town Council 1931 TPD 284 at 290
Patz v Greene & Co 1907 TS 427 at 433
Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd1984 (3) SA 623 (A) at
634E - 635C
Ridge v Baldwin and Others [1963] 2 All ER 66 (HL)
Sachs v Minister of Justice; Diamond v Minister of Justice 1934 AD 11 at 22
Schmidt and Another v Secretary of State for Home Affairs [1969] 1 All ER 904
(CA) at 909C - F
Schulte v Van den Berg and Others1991 (3) SA 717 (C) at 720D
S A Warehouse Service (Pty) Ltd v National Transport Commission1980 (4) SA
183 (T) at 186
Sentrale Kunsmis Korporasie (Edms) Bpk v NKP Kunsmisverspreiders (Edms)
Bpk1970 (3) SA 367 (A) at 395F - 396A
South African Defence and Aid Fund v Minister of Justice1967 (1) SA 263 (A) at
270G - 271A
South African Railways & Harbours v Transvaal Consolidated Land and Exploration
Co Ltd1961 (2) SA 467 (A) at 481 - 2, 491, 497
South African Roads Board v Johannesburg City Council1991 (4) SA 1 (A) at 10F 11C, 12E - 13E
Transkei Public Servants Association v Government of the Republic of South
Africa and Others 1995 (9) BCLR 1235 (Tk) at 1243I - 1244C
1999 (2) SA p713
OLIVIER JA
Transvaal Agricultural Union v Minister of Land Affairs1997 (2) SA 621 (CC) at
631A - B
Transvaal Consolidated Land and Exploration Co Ltd v Johannesburg City
Council1972 (1) SA 88 (W) at 94
Trojan Exploration Co (Pty) Ltd and Another v Rustenburg Platinum Mines Ltd and
Others1996 (4) SA 499 (A) at 509G - 510A
Van Vuren v Registrar of Deeds 1907 TS 289 at 294, 295
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(ISBN: 9780702185458)
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by any means, electronic or mechanical, without permission.
West Witwatersrand Areas Ltd v Roos 1936 AD 62 at 72
Westinghouse Brake & Equipment (Pty) Ltd v Bilger Engineering (Pty) Ltd1986 (2)
SA 555 (A) at 562C - 563A
Badenhorst 'The Revesting of State-held Entitlements to Exploit Minerals in South
Africa: Privatisation or Deregulation' (1991) TSAR 113 at 119, 120, 124 - 31
Bamford The Law of Partnerships and Voluntary Associations in South Africa 3rd
ed at 126 et seq
De Smith, Woolf and Jowell Judicial Review of Administrative Action 5th ed at 417
et seq
Franklin and Kaplan The Mining and Mineral Laws of South Africa at 1, 2, 8 - 15,
33, 36, 138 - 41, 169 - 72
Hahlo and Kahn The Union of South Africa: The Development of its Laws and
Constitution at 760, 762
Henderson Environmental Laws of South Africa vol 1 at 1-7 - 1-8, chap 2.5
Kaplan and Dale A Guide to the Minerals Act, 1991 at 5, 6, 11, 49
Kleyn and Boraine Silberberg & Schoeman's The Law of Property 3rd ed at 405,
406 fn 10, 411 - 12, 413
Van der Merwe Sakereg 2nd ed at 559 - 62, 566 (and fn 124), 567.
Cur adv vult.
Postea (March 12).
Judgment
Olivier JA:
[1] This is an appeal against a judgment of Cassim AJ in an opposed application
in the High Court of South Africa, Witwatersrand Local Division, leave to appeal
having been granted by the Court a quo. The appeal raises the question whether
interested parties, wishing to oppose an application by the holder of mineral
rights for a mining licence in terms of s 9 of the Minerals Act 50 of 1991 ('the
Act'), are entitled to raise environmental objections and be heard by the first
appellant, who is the official designated to grant or refuse such licence ('the
Director'). In the present case, the Director, taking the view that consideration of
such objections would be premature at that stage, refused the respondents a
hearing. He was successfully taken on review. The appeal is aimed at reversing
the outcome of that review.
[2] The second appellant ('Sasol Mining') is the holder of extensive mineral rights,
including those in respect of an area comprising three farms in the Sasolburg
district. The farms front on the Vaal River.
1999 (2) SA p714
Olivier JA
[3] During May 1996 Sasol Mining was in urgent need of extending its coal mining
activities to the area in question. It was established that the only feasible manner
of mining for coal in that area was by open-cast mining. The envisaged mining
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site is in the north-west part of the area and very close to the southern bank of
the Vaal River. Sasol Mining then applied to the Director for a mining licence in
terms of s 9 of the Act.
[4] The first respondent ('Save') is an unincorporated association. Its members
are concerned people who own property and live along the Vaal River. Its object,
according to its written constitution, is to assist its members to protect and
maintain the environmental integrity of the Vaal River and its environs for current
and future generations with specific focus on the area between the Letaba Weir
and the Barrage - ie precisely the area in the immediate vicinity of the proposed
open-cast mine. The other respondents are either members of Save or property
owners in the affected area. All the respondents are united in their opposition to
the development and exploitation of the coal reserves by open-cast mining in the
area under discussion. Their concerns are primarily of an environmental nature.
[5] In July 1996, while Sasol Mining's application was still under consideration by
the Director, Save's attorney, Mr Barnard, raised the contention that Save is
entitled to be heard in opposing the said application. Towards the end of February
1997 and again in March 1997, the Director informed Barnard that he was not
obliged to hear Save at that stage and that he was not prepared to do so. On 22
May 1997 the Director issued a mining licence to Sasol Mining in respect of the
envisaged open-cast mine.
[6] The environmental concerns raised by the respondents can be summarised as
follows:
(a) The destruction of the Rietspruit wetland.
This wetland occurs, inter alia, in the area under discussion. It covers
approximately 1 000 hectares. The wetland in its present state
annually filters and purifies naturally in excess of two million cubic
metres of improved quality water into the Vaal Barrage. This large
volume of water makes a valuable contribution to water quality in
the Vaal Barrage. It is alleged that the wetland will be at least
partially destroyed by the envisaged open-cast mining. It is further
alleged that the eventual replacement of the overburden after the
mine has been worked out would not restore the wetland because
the upper layer of hydric soil will have been replaced by
undifferentiated soils without water storage capabilities. The affected
wetland will thus be permanently destroyed. Furthermore, removal
of the overburden - to reach the coal seams - will result in natural
seepage water making contact with iron pyrites in the exposed coal
seams. This will create weak sulphuric acid solutions and leaching of
acid water into the Vaal Barrage is likely.
(b)
The threat to fauna and flora.
The proposed mining area supports some 254 bird species and some 44
endemic species of mammals. In addition, some 33 species
1999 (2) SA p715
Olivier JA
reptiles and amphibians are likely to occur in the area. Some 15 plant taxa
occurring in the area, including the provincial flower, are listed in the
Free State's Protected Plants Ordinance. Furthermore, various red
data plants (ie plants endangered by or threatened with extinction)
have been identified.
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(c)
Pollution.
The predicted constant noise, light, dust and water pollution resulting
from the proposed strip mine will totally destroy the 'sense of place'
of the wetland and the associated Cloudy Creek. Thus the spiritual,
aesthetic and therapeutic qualities associated with this area will also
be eliminated.
(d)
Loss of water quality.
The Vaal Barrage is the only water body of reasonable quality and free of
bilharzia serving the recreational needs of the Gauteng metropolitan
populace. A substantial infrastructure to support diversified naturerelated recreational activities has been developed in the Vaal River
area. The predicted environmental degradation leading to reduced
water quality and aesthetic values resulting from the envisaged 20
years of open-cast mining on the banks of the Vaal Barrage would be
likely to destroy a major portion of such activities with a concomitant
destruction of small business enterprises and loss of job
opportunities.
(e)
Decreased value of properties.
There are indications, so it was finally alleged, that mere rumours of the
commencement of open-cast mining in the area under discussion
have already adversely affected property values and the investor.
Concerns are expressed that the operation of the proposed opencast mine will have a permanent negative effect on the property
market in the vicinity, with a serious diminution of property values.
Save's legality
[7] The last-mentioned concern raised by Save, ie the possible diminution of
property values caused by the said mining, gave rise to a point in limine being
advanced by Sasol Mining. It is that Save, which has more than 20 members and
is not registered as a company, is an illegal association. Reliance was placed on s
30(1) of the Companies Act 61 of 1973. It reads:
'No company, association, syndicate or partnership consisting of more than
twenty persons shall be permitted or formed in the Republic for the purpose
of carrying on any business that has for its object the acquisition of gain by
the company, association, syndicate or partnership, or by the individual
members thereof, unless it is registered as a company under this Act, or is
formed in pursuance of some other law or was before the 31st day of May,
1962, formed in pursuance of Letters Patent or Royal Charter.'
The critical question is whether Save, in the words of s 30(1), exists for the
purpose of '. . . carrying on any business that has for its object the acquisition of
gain . . .' by the association or its members as individuals.
1999 (2) SA p716
Olivier JA
[8] The prohibition contained in s 30(1) should be kept within its proper bounds.
The underlying purpose of the prohibition in our country, as in England, is to
prevent mischief arising from trading undertakings being carried out by large
fluctuating bodies so that persons dealing with them do not know with whom they
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by any means, electronic or mechanical, without permission.
are contracting (see Smith v Anderson (1880) 15 ChD 247 (CA) at 273; Mitchell's
Plain Town Centre Merchants Association v McLeod and Another1996 (4) SA 159
(A) at 169I - 170B). On the facts before us it cannot be said that Save was
trading or carrying on a business with the object of the acquisition of gain.
Consequently, the objection cannot be upheld.
The audi alteram partem rule ('audi rule') in the present case
[9] The respondents, contending that the rule should have been applied by the
Director, argued as follows:
(a) The rule comes into operation whenever a statute empowers a public
official or body to do an act or give a decision prejudicially affecting a
person in his or her liberty or property or existing rights or interests,
or whenever such a person has a legitimate expectation of a hearing,
unless the statute expressly or by necessary implication indicates the
contrary, or unless there are exceptional circumstances which would
justify a court in not giving effect to it (see Du Preez and Another v
Truth and Reconciliation Commission1997 (3) SA 204 (A) at 231C F).
(b)
The primary substantive rights or interests on which the respondents
rely (and which according to them would be affected prejudicially by
an adverse decision of the Director) are the constitutional rights to
the environment (see s 24 of the Constitution of the Republic of
South Africa Act 108 of 1996).
(c)
The audi rule is neither expressly nor by necessary implication excluded
by the Act, nor are there any considerations of public policy
militating against the application of the rule.
[10] The appellants contend that in the present case the rule is excluded by
necessary implication. Their arguments can be summarised as follows. I shall at
the same time state my views in respect of each contention.
Exclusion by virtue of the provisions of s 9 of the Act
[11] It was argued that s 9 is peremptory. It provides that the Director shall issue
the mining authorisation if he is satisfied:
'(a) with the manner in which and scale on which the applicant intends to
mine the mineral concerned optimally under such mining
authorisation;
(b)
with the manner in which such applicant intends to rehabilitate
disturbances of the surface which may be caused by his mining
operations;
(c)
that such applicant has the ability and can make the necessary
provision to mine such mineral optimally and to rehabilitate such
disturbances of the surface; and
(d)
that the mineral concerned in respect of which a mining permit is to
be issued (i)
occurs in limited quantities in or on the land or in tailings, as
the case may be, comprising the subject of the application; or
(ii)
will be mined on a limited scale; and
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1999 (2) SA p717
Olivier JA
(iii)
(e)
will be mined on a temporary basis; or
that there are reasonable grounds to believe that the mineral
concerned in respect of which a mining licence is to be issued (i)
occurs in more than limited quantities in or on the land or in
tailings, as the case may be, comprising the subject of the
application; or
(ii)
will be mined on a larger than limited scale; and
(iii)
will be mined for a longer period than two years.'
[12] Counsel for the Director conceded that the audi rule does apply to paras (a)
- (e) of s 9(3), but then strictly within the ambit of these paragraphs, which state
requirements that he termed 'jurisdictional facts'. These paragraphs, so he
argued, amount to a numerus clausus, exhaustively defining and limiting the
discretionary power of the Director and excluding by necessary implication the
application of the audi rule when the objection sought to be raised is based solely
upon environmental concerns.
[13] It is clear, however, that on a proper construction of paras (a) - (e) of s
9(3), at least some of the matters therein referred to involve environmental
issues. For example, para (b) requires an enquiry into the manner in which an
applicant intends to rehabilitate disturbances to the surfaces which may be
caused by the mining operations. This provision requires the Director to enquire
into the nature and extent of the terrain which would be violated by the relevant
mining operations, the effect of such violation and how the terrain could and
should be rehabilitated. In casu, he would have to take into account the alleged
likelihood of damage to the Rietspruit wetland and the question if, and to what
extent, the wetland could be rehabilitated. These are environmental matters
about which the respondents have legitimate concerns. The Director would
therefore have to give them an opportunity to be heard at that stage unless there
are other provisions of the Act which require them to defer raising their
environmental concerns until some other time. Appellants submitted that such is
indeed the case. I will consider this argument at a later stage.
[14] Counsel for Sasol Mining, on the other hand, was not prepared to concede
that the audi rule applies to paras (a) - (e) of s 9(3) at all. Instead he contended
that the fact that the Legislature enumerated the so-called 'jurisdictional facts' in
s 9(3) (which, in counsel's submission, do not include the consideration of
environmental matters), indicates, by necessary implication, a total exclusion of
the audi rule.
[15] The argument is, in my view, fallacious. We must ask ourselves: are we to
infer that it was the intention of Parliament to exclude a fundamental principle
such as the audi rule merely because the section under discussion has
enumerated certain factors which the Director must take into account in
exercising his discretion? If that were the case the audi rule would be excluded in
virtually every instance where some factors which an official has to take into
account are enumerated. Such an approach would emasculate the principles of
natural justice.
No rights are violated by a decision in terms of s 9
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[16] The next argument advanced by the appellants runs like this: The mere
issuing of a mining licence by the Director in terms of s 9 of the Act
1999 (2) SA p718
Olivier JA
can have no tangible, physical effect on the environment. For this reason no
rights are infringed and there is no case for a hearing. Only when the
environmental management programme has been approved in accordance with s
39 can mining commence; and only then is there the possibility that rights may
be infringed, and only then is there a case for a hearing. In the present matter
the Director has not approved an environmental management programme in
terms of s 39, and so, it is argued by the appellants, the respondents have no
right infringed or in jeopardy, and have consequently no claim to a hearing.
[17] The argument cannot be sustained. The issue of a licence in terms of s 9
enables the holder to proceed with the preparation of an environmental
management programme, which, if approved, will enable him to commence
mining operations. Without the s 9 licence he cannot seek such approval. The
granting of the s 9 licence opens the door to the licensee and sets in motion a
chain of events which can, and in the ordinary course of events might well, lead
to the commencement of mining operations. It is settled law that a mere
preliminary decision can have serious consequences in particular cases, inter alia
where it lays '. . . the necessary foundation for a possible decision . . .' which may
have grave results. In such a case the audi rule applies to the consideration of
the preliminary decision (see Van Wyk NO v Van der Merwe1957 (1) SA 181 (A)
at 188B - 189A). In my view, this is such a case.
The audi rule should only be applied at the s 39 stage
[18] It was also argued on behalf of the appellants that, because the audi rule
would in any case be applied at the s 39 stage, there was no need for the
application of the rule at the s 9 stage. In fact, so it was argued, to apply the rule
at both stages would amount to an unnecessary and costly duplication.
[19] This argument confuses the different objects of s 9 and s 39. At the s 9
stage the basic issue is whether a mining licence should be granted or not; at the
s 39 stage what is under consideration is the environmental management
programme. What is more, the granting of a s 9 licence enables the holder to
apply to the Director to be exempted from the obligation to submit an
environmental management programme (see s 39(2)(a)). It also enables the
Director to grant temporary authorisation for mining to commence, pending the
approval of an environmental management programme (s 39(4)). Whether or not
the Director would have to afford an objector a hearing before doing either is
unnecessary to decide. What matters is that, at the very least, the granting of a
licence in terms of s 9 empowers the holder to make such applications and
thereby subject an objector to potential jeopardy in those respects. It follows that
a hearing in terms of s 39 may not address the appellants' basic objection to the
manner of mining, and may never take place or only take place after mining has
already commenced.
[20] In the result, I am of the view that the audi rule applies when application for
a mining licence is made to the Director in terms of s 9 of the Act. Such a hearing
need not necessarily be a formal one, but
1999 (2) SA p719
This CD may be used only in conjunction with Michael Kidd Environmental Law 2 ed (Juta 2011)
(ISBN: 9780702185458)
© 2011 Juta & Co Ltd. All rights reserved. No part of this CD may be reproduced or transmitted in any form or
by any means, electronic or mechanical, without permission.
interested parties should at least be notified of the application and be given an
opportunity to raise their objections in writing. If necessary, a more formal
procedure can then be initiated. Nothing in s 9 or in the rest of the Act either
expressly or by necessary implication excludes the application of the rule, and
there are no considerations of public policy militating against its application. On
the contrary, the application of the rule is indicated by virtue of the enormous
damage mining can do to the environment and ecological systems. What has to
be ensured when application is made for the issuing of a mining licence is that
development which meets present needs will take place without compromising
the ability of future generations to meet their own needs (the criterion proposed
in the Brundtland Report: World Commission on Environment and Development,
'Our Common Future' Oxford University Press 1987). Our Constitution, by
including environmental rights as fundamental, justiciable human rights, by
necessary implication requires that environmental considerations be accorded
appropriate recognition and respect in the administrative processes in our
country. Together with the change in the ideological climate must also come a
change in our legal and administrative approach to environmental concerns.
In the result, the appeal is dismissed with costs, including the costs of two
counsel.
Mahomed CJ, Howie JA, Marais JA and Madlanga AJA concurred.
First Appellant's Attorneys: State Attorneys, Johannesburg and Bloemfontein.
Second Appellant's Attorneys: Deneys Reitz, Johannesburg; Webbers,
Bloemfontein. Respondents' Attorneys: Moodie & Robertson, Johannesburg;
Claude Reid Inc, Bloemfontein.
This CD may be used only in conjunction with Michael Kidd Environmental Law 2 ed (Juta 2011)
(ISBN: 9780702185458)
© 2011 Juta & Co Ltd. All rights reserved. No part of this CD may be reproduced or transmitted in any form or
by any means, electronic or mechanical, without permission.