Centre for Environmental Rights – Advancing Environmental Rights in South Africa

The judgment of the High Court of South Africa, Gauteng Division, Pretoria is available here.

• Judge: Bam J
• Heard: 10 to 12 November 2021
• Judgment delivered: 4 May 2022
• Outcome: Decisions to award the mining right to Tendele and to approve the Environmental Management Programme (EMPr) are declared invalid. The Minister’s decision to dismiss the internal appeal is declared invalid and set aside. The appeal is remitted back to the Minister for reconsideration in accordance with the findings of the judgment and certain mandated considerations to take into account. The respondents were ordered to pay the costs of the applicants.

Summary:

This matter involved an application brought by community environmental justice organisation MCEJO and others to review and set aside a mining right granted to Tendele in 2016, as well as the review of the approved EMPr and the appeal decision of the Minister of Minerals and Energy.

MCEJO’s grounds for the review of Tendele’s mining right included the following:

• The documentation Tendele provided to interested and affected parties (IA&Ps) during the EIA process created the false impression that its application was for 32 km2 whereas the actual area it intended to mine was a much larger 212 km2;
• During the EIA process, Tendele and its environmental consultants failed to identify and assess all potential impacts and undertake the necessary studies;
• The mine failed to provide IA&Ps with a meaningful opportunity to be heard in the mandatory participation processes;
• As a result of this inadequate consultation with the lawful occupiers of the land and other I&APs, there was no meaningful stakeholder input in respect of the description of the environment, the anticipated environmental, social or cultural impacts, proposed land or development alternatives, and the appropriate procedure to plan and develop the proposed mining operation.
• No free, prior and informed consent was obtained from the occupiers of the land.

During the trial, Tendele conceded that the mining right in question had been unlawfully granted and was invalid, and undertook to abandon most of its 212 km2 mining right area – but wished to retain three smaller mining areas located inside the approved area.

A number of deficiencies in Tendele’s EIA process were noted by the court including an absence of specialist reports. Judge Bam was critical of the Department of Mineral Resources and Energy for accepting Tendele’s scoping report despite it not having undergone public consultation, in violation of the law. Tendele also had not demonstrated adequate financial provision for post-mining rehabilitation as required by law.

The court narrowed its consideration to three areas: the defective EIA process, inadequate public participation and Tendele’s failure to obtain consent from land owners in terms of the Interim Protection of Informal Land Rights Act (IPILRA).

The court described Tendele’s approach to the EIA’s scoping report as:

An affront to the law and should have never been allowed.”

Judge Bam described Tendele’s attitude during this phase of the EIA process as “offensive” and characterised Tendele as “an ‘unbridled horse’ that showed little or no regard for the law.”

In addressing whether Tendele had complied with the requirements of IPILRA, the court found the evidence of the Mpukunyoni Traditional Council unconvincing that the specific requirements relating to full, prior and informed consent and procedures relating to the deprivation of informal land rights had not been met by Tendele and the traditional authority. The judge found that Tendele had not obtained the required consent from residents of the land on which the proposed mining was to take place.

The judge ordered that:

• The DMRE Director General’s decision to award the mining right to Tendele, and the Regional Manager’s decision to approve Tendele’s EMPr were declared invalid, but not set aside;
• The Minister’s decision to dismiss the internal appeal and approve the EMPr was declared invalid and set aside;
• The internal appeal was remitted back to the Minister for reconsideration in accordance with the findings of the judgment and certain additional considerations to take into account;
• Tendele was directed to notify I&APs of their entitlement to participate in the new appeal process; and
• Tendele was ordered to ensure proper public participation processes as prescribed in NEMA Guidelines and EIA Regulations.