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Assmang Proprietary Limited v Minister of Mineral Resources and Energy and Others (20 November 2023)

20 November 2023

  • The judgment of the High Court, Gauteng Division, Pretoria, can be found here.
  • Neutral citation: Assmang Proprietary Limited v Minister of Mineral Resources and Energy and Others (13164/2022; 13165/2022; 13166/2022) [2023] ZAGPPHC 1933 (20 November 2023)
  • Case numbers: 13164/2022,  13165/2022 and 13166/2022.
  • Coram: Van der Schyff J
  • Date delivered: 20 November 2023
  • Outcome (for all three consolidated cases):
    • The three decisions of the DMRE to grant environmental authorisation are reviewed and set aside;
    • The applications for environmental authorisation are referred back to the DMRE for reconsideration and the parties must consult with Assmang and sign a consultation-minute, which is to supplement the third respondent’s application for an environmental authorisation before its reconsideration; and
    • The DMRE respondents are ordered to pay the costs of this application, including the costs of two counsel.

Summary

The applicant (Assmang) is the owner of a surface right and mining right on a Northern Cape property. The mining right authorises Assmang to mine manganese ore at its Black Rock Mine on the property.

Three parties (PPG Gemstone and Export, Matebesi Family Trust and Mr PG Matebesi) lodged applications to mine gemstones within Assmang’s mining area.

Assmang was not aware of these applications and lodged an appeal in terms of section 96 and objected in terms of section 10(2) of the MPRDA. Despite these, the DMRE’s regional manager granted environmental authorisation (EA) to the 3 parties.

This case concerns a judicial review by Assmang of the decisions by the DMRE to grant the three EAs.

The EAs were granted following the submission of a basic assessment report (BAR) and an environmental management programmed report (EMPr). Assmang claimed that the BAR and EMPr were so fundamentally and fatally flawed that they tainted the lawfulness and validity of the EAs. It alleged that the BAR and EMPr contained inaccurate, incorrect and misleading information. Assmang raised several grounds for review and contended that the EAs were obtained through non-disclosure of material information or misrepresentation of material facts

Importantly, Assmang argued that the respondents had failed to consult with it while conducting its environmental impact assessment. Assmang submitted that the failure to provide it with an adequate opportunity to comment on the BAR and EMPr is in contravention of the peremptory public participation process required under Regulations 40 and 41 of the NEMA EIA Regulations, and in violation of its right to administrative action, which is lawful, reasonable and procedurally fair.

The DMRE argued that Asssmang had not exhausted internal remedies or applied for condonation for late filing of the review. It also argued that Assmang did not have an exclusive right to mine on the property. It argued that the 3 parties had made efforts to contact Assmang prior to the EIA process.

The court held:

The aspect that renders the decisions to grant environmental authorisations reviewable is Assmang’s undisputed contention that it was not consulted when the BAR and EMPr were compiled, or informed of the application for environmental authorisation. The third respondents’ applications for environmental authorisations reflected that such consultations, did in fact, occur. The latter is not confirmed under oath in these proceedings.  I find that the representation that Assmang was consulted, constitutes a misrepresentation of material facts that justifies the review and setting aside of the environmental authorisation.”

It went on to provide:

    The overall goal of requiring environmental authorisation is to protect human health and the environment. Where mining activities are already occurring on a property, it is imperative to invite the existing right holder to consult and ensure such consultation occurs. The existing right holder who is conducting mining operations is not to be considered akin to a landowner who needs to be consulted because the prospective mining operations might limit the exercise of his entitlements as a landowner. Only through effective consultation with the existing mining right holder who is actively mining will a prospective miner be able to determine the extent of existing activities, consider the cumulative effect of multiple mining operations occurring simultaneously on the same mining area, and be able to plan accordingly. This is why further consultation after granting an environmental authorisation can never rectify the lack of consultation before the environmental authorisation was granted. Consequently, it would have been impossible for the decision-maker to assess the impact of the proposed mining projects on the environment without considering the extent of the existing mining operations.”

The court ruled that the failure to consult rendered the granting of the EAs reviewable and necessitated it being set aside. In addition, the failure to consult with Assmang before the EA was granted rendered the administrative action procedurally unfair in depriving Assmang of an opportunity to comment on the BAR and the EMPr.