Centre for Environmental Rights – Advancing Environmental Rights in South Africa

The judgment of the Gauteng High Court, Pretoria can be found here.

• Neutral citation: Masuku and Others v Minister of Mineral Resources and Others (25764/2019) [2022] ZAGPPHC 145 (10 March 2022
• Case number: 25764/2019
• Coram: Lenyai AJ
• Date delivered: 10 March 2023
• Outcome: The decision of the Minister of Mineral Resources to award Aquila Steel (South Africa) Pty Ltd a mining right, and the decision to transfer this mining right to Motjoli Iron Ore (Pty) Ltd were upheld. The application was dismissed with costs.

Summary

This is an application for judicial review of two decisions taken by the Minister of Mineral Resources namely the decision to award Aquila Steel (South Africa) Ltd (Aquila) a mining right and the decision to later transfer the mining right to Motjoli Iron Ore (Pty) Ltd (Motjoli).

The applicants also sought an order declaring that the Waterberg District Municipality and the Mopani District Municipality are bio-critical and biodiversity regions not suitable for mining and mining related activities.

On 25 April 2013 Aquila was granted a mining right in terms of Section 23 (1) of the Mineral and Petroleum Resources Development Act 28 of 2002 (MPRDA). On 26 April 2023, Aquila’s mining right was transferred to Motjoli.

The applicants, unhappy with these decisions applied for the judicial review of both decisions.

In their arguments, the applicants contended that the granting of the mining right to Aquila was unlawful in that it needed to be assessed in terms of the One Environmental System (OES) which came into effect on 8 December 2014. The introduction of the OES made provision for transitional arrangements for a seamless and efficient management of transactions that were already in the pipeline in both the MPRDA Amendment Act, 2008 and the NEMA Amendment Act, 2008. In this regard, the court held that according to the transitional arrangements and the Interpretation Act, applications which are pending when an amending enactment is implemented should be decided without regard to such enactment. In this case, since Aquila’s application had been submitted in July 2013, the court found that the granting of Aquila’s mining right under the old regime was correct and lawful.

Further to their arguments regarding the OES, the applicants also argued that the transfer of the mining right to Motjoli should not be upheld as it would result in unacceptable pollution, ecological degradation or damage to the environment. Additionally, the applicant advanced arguments that the cultural and religious significance of the mountain as well as the environmental effects of the mining on the property were not duly considered in the decision making process.

In response, the court contended that:

…this matter is highly technical and the court does not have the necessary skill and knowledge to determine the impact the mining would have on the environment. Review applications are not meant to determine whether a decision taken by the executive is correct on not, they are meant to determine whether there exists a reviewable irregularity by the executive who made the decision. The court must defer to the decisions of the second respondent (Director-General) and the third respondent (Regional Manager, REMDEC LIMPOPO REGION).”

On the issue of a declaratory order declaring that the Waterberg District Municipality and the Mopani District Municipality as bio-critical and biodiversity regions not suitable for mining and mining related activities, the court held that such an order would “amount to the court usurping the powers of the Executive and infringing upon the constitutional democratic principle of the separation of powers.” Further, such declaratory relief would materially affect the rights of many third parties who had not been cited, among others, different organs of state, municipalities, businesses and communities in the areas mentioned in the declarator.

The review application consequently failed, and the court ordered that the review application is dismissed with costs