Centre for Environmental Rights – Advancing Environmental Rights in South Africa

Last week, the Mining Environmental Justice Community Network of South Africa (MEJCON-SA) participated in an application brought by the Minerals Council of South Africa (MINCOSA) to review and set aside particular provisions of the 2018 Mining Charter. MEJCON-SA is the Fifth Respondent and is represented by the Centre for Environmental Rights (CER). The matter was heard virtually by Judge Kathree-Setiloane and with her, Judges E van der Schyff and B Ceylon.

Mining Affected Communities United in Action (MACUA and WAMUA) was also in the case, represented by the Centre for Applied Legal Studies (CALS). The hearing ran for three days.

MINCOSA’s main argument and basis for review is that the Mining Charter is a mere policy document that should guide the Minister and mining companies around transformation of the mining industry. MINCOSA submitted that in creating provisions which would have sanctions for non-compliance by mining companies, the Minister was exceeding his powers and in contravention of Promotion of Administrative Justice Act, 2000 and the Constitution.

MEJCON–SA argued that the South African mining sector, despite being mandated by the Constitution to redress inequalities, has been unable to do more than enrich a minority.

Inside the virtual hearing, it was argued on behalf of MEJCON-SA that the mining industry has the most adverse effects on local communities who are the most vulnerable, and yet these are the individuals who were not adequately consulted in the drafting of the 2018 Charter. This is despite the earlier 2018 Court order that declared mining communities key stakeholders who must be consulted on laws and policies that have a direct impact on their lives.

MEJCON-SA asserted that the 2018 Mining Charter is reviewable on the basis that public participation conducted in the drafting of the 2018 Charter was flawed. MEJCON – SA submitted that the Minister of Mineral Resources and Energy must publish a Charter that sets a framework, targets and timetable that will allow historically disadvantaged South Africans to enter into and benefit from the mining industry and mineral resources.

One of the objects of the Mineral and Petroleum Resources Development Act, 2002 (MPRDA) is that it must give effect to section 24 of the Constitution – the right to an environment not harmful to health or well-being. By virtue of the detrimental impact of mining on communities’ health, well-being and livelihoods, MEJCON-SA asserted that the failure in the 2018 Mining Charter to address that environmental objective makes the Charter reviewable.  That it lacks an environmental justice imperative and a gender justice imperative renders it inappropriate to address, as it must, historical social and economic inequalities. There cannot be equality without gender equality, and there cannot be environmental justice without gender justice.

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NOTES TO EDITOR:

Link to litigation papers: https://cer.org.za/programmes/mining/litigation/minerals-council-of-south-africa-v-minister-of-mineral-resources-and-energy-others-mining-charter-case