Records relating to Atha-Africa Ventures’ proposed Yzermyn Colliery in the Mabola Protected Environment
Federation for a Sustainable Environment v Director-General: Department of Mineral Resources
On 16 April 2015, the CER, on behalf of the Federation for a Sustainable Environment (FSE), requested from the Department of Mineral Resources access to records relating to the mining right granted to Atha-Africa Ventures (Pty) Ltd, including the mining right, the approved environmental management programme (EMPR), the mining works programme (MWP), the social and labour plan (SLP) and the financial provision put down by AAV for its proposed mining operation. On 29 May 2016, the DMR granted the FSE access to some records requested, but refused it access to the financial provision; the MWP; any correspondence between AAV and the DMR/Minister of Mineral Resources contemplated by section 48(1)(b) of the National Environmental Management: Protected Areas Act, 2003; and any correspondence between the DMR and AAV and between the DMR and the Department of Environmental Affairs and/or the Department of Water and Sanitation regarding AAV’s proposed Yzermyn project.The DMR relied on section 36(1) (mandatory protection of commercial information of a third party) and 44(1) (operations of public bodies) of PAIA to justify its refusal. It however, did not provide reasons why it relied on those specific grounds.
On 21 July 2016, the CER, on behalf of the FSE, launched an internal appeal against the decision of the DMR to refuse access to the said records. In the appeal it was argued that;
- The DMR did not comply with the statutory timeframes set out in PAIA
- The DMR did not apply its mind to the request
- The DMR did not interpret PAIA as to promote transparency and in favour of disclosure (as provided for in section 32 of the Constitution)
- The records requested do not fall within the scope and ambit of section 44(1) of PAIA
- records requested consist of an account or statement of reasons required to be given in terms of section 5 of the Promotion of Administrative justice Act 1 of 2000
- The DMR had an obligation to apply section 28 of PAIA (severability); and
- Disclosure of the records is in the public interest.
On 15 September 2016, the Minister of Mineral Resources upheld the FSE’s appeal.
The Mpumalanga Regional Office of the DMR has still not given CER the records to which it was granted access in May 2015.