28 February 2019
High Court of the Republic of South Africa, North West Division, Mahikeng
Case no. M43/2018
Date: 28 February 2019
Judge: Leeuw J
In this matter, the Mining Forum of South Africa (Mining Forum) brought an application requesting for an order declaring, inter alia, that the Minister of Mineral Resources (Minister) acted in breach of his statutory duty in terms of the Mineral and Petroleum Resources Development Act, 2002 (MPRDA) by failing to act against Lonmin for its failure to implement its Social and Labour Plans over the period 2013 – 2017 and that the conduct of the Minister, Lonmin and the other co-respondents are in breach of section 24(b)(iii) of the Constitution of the Republic of South Africa, 1996 (Constitution). The Mining Forum asked the Court to, inter alia, suspend Lonmin and its subsidiaries’ mining rights.
It was not disputed that the Minister was in breach of his statutory duty to take action against Lonmin and its subsidiaries: it was therefore not necessary for the Court to make such a declaratory order. The Court also held that the Mining Forum should have challenged the failure by the Minister to take action against Lonmin and its subsidiaries in terms of the Promotion of Administrative Justice Act, 2000. It also found that it was in appropriate for the Mining Forum to rely on section 24(b)(iii) of the Constitution because when there is legislation in place to give effect to a certain provision of the Constitution, the Constitution should only play a subsidiary or supporting role in litigation (the principle of subsidiarity).
The application was therefore dismissed with costs.