Mining and Environmental Justice Community Network of South Africa and others v Minister of Environmental Affairs and others
8 November 2018
High Court of the Republic of South Africa, Gauteng Division, Pretoria
Case No. 50779/2017
Date: 8 November 2018
Judge: Davies, J
In this case the Pretoria High Court had to consider the decision of the Minister of Environmental Affairs and the Minister of Mineral Resources to grant permission to Atha-Africa Ventures 16 (Pty) Ltd (AAV) to mine in the Mabola Protected Environment in terms of section 48(1)(b) of the National Environmental Management: Protected Areas Act, 2003 (NEMPAA).
The Court set aside the decision of the Minister on the basis that –
- the decision-making process was nontransparent;
- the decision-making process was procedurally unfair (no public participation process was conducted in relation to the decision);
- the Ministers failed to independently and distinctively apply their minds to the decision (the relied on the decisions of other decision-makers in relation to other approvals, such as the decision by the Mpumalanga Department of Agriculture, Rural Development, Land and Environmental Affairs to grant environmental authorisation in terms of the National Environmental Management Act, 1998 and the decision to grant a water use licence by the Department of Water and Sanitation in terms of the National Water Act, 1998);
- there was no evidence that the Ministers applied the national environmental environmental management principles, and in particular the risk averse and cautionary approach, provided for in section 2 of the National Environmental Management Act, 1998;
- the decision was taken in the absence of a management plan approved by the relevant authority in terms of NEMPAA (the management plan is important for the purposes of a decision to grnat permission to mine in a protected environment); and
- the Minister the did not wait for other decision-making processes to conclude (there are still appeal processes pending in relation to the decision to grant a water use licence for the proposed mine and the decision to approve an environmental management programme for the proposed mine in terms of the Mineral an Petroleum Resources Development Act, 2002).
In the light of the lack of transparency and public participation, the Court handed down a punitive costs order against the Ministers and the MEC.