Centre for Environmental Rights – Advancing Environmental Rights in South Africa

Case Number : 96628/2015

High Court: Gauteng Division, Pretoria

Date of judgment: 11 September 2020

Judge: Makhubele J

Judgment.

The primary issue in this matter is whether interested and affected parties (I&APs) in an application for a mining right are entitled to a copy of the mining right application documents in terms of sections 10 and 22(4) of the Mineral and Petroleum Resources Development Act 28 of 2002 (MPRDA).

The Applicants in this matter were the iNkosana of the Umgungundlovu community council (Duduzile Baleni) and 89 community members who were registered interested and affected parties in a 2015 mining rights application made by the fifth respondent, TEM.  TEM had applied to mine titanium on the Applicants’ land in terms of section 22 of the MPRDA.

TEM provided the Applicants with a copy of the mining right application, but only after it had been issued and served. TEM argued that the MPRDA does not entitle I&APs to a mining right application and that access to such information is regulated by the Promotion of Access to Information Act 2 of 2000 (PAIA).

The Centre for Applied Legal Studies (CALS) was admitted in the proceedings as amicus curiae to assist the court with submissions demonstrating the low success rate of obtaining information requested through PAIA processes. CALS submitted reports on surveys conducted by Centre for Environmental Rights (CER) and also referred to international and legal trends in information disclosure and consultation.

After being notified at a community meeting that TEM had made an application for mining rights on their land, the Applicants sought to obtain a copy of the application via TEM, its Environmental Assessment Practitioner (EAP), and the mining authorities to no avail. After months of trying to obtain the documents, the Applicants launched this litigation to compel disclosure of the application documents.

The Applicants contended that properly interpreted, sections 10 and 22(4) of the MPRDA mean that interested and affected parties should obtain a copy of a mining right application automatically upon request from the Department’s Regional Manager to enable them to have meaningful consultations with TEM. TEM disputed this arguing that applicants should use PAIA to obtain a mining right application and that the legislature had not provided for automatic access under the MPRDA.

Judge Makhubele cited the Save the Vaal and Fuel Retailers judgments in considering the nature of sustainable development and the right of I&APs to raise environmental objections to proposed mining developments. The Earthlife Africa judgment was also considered in which an environmental authorisation was set aside for insufficient public participation. The judge reaffirmed the importance of meaningful public participation.

In reaching her decision, Judge Makhubele agreed with the Applicants’ interpretation of the MPDRA sections in finding that I&APs should not have to go through the time-consuming and often unsatisfactory PAIA process in order to obtain a mining right application.

The judge held that the Regional Manager of the Department of Mineral Resources must provide the mining right application documents to interested and affected parties on request.

TEM was ordered to pay the costs of the application including the CAL’s costs as amicus curiae.