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Global Environmental Trust & Mfolozi Community Environmental Justice Organisation & Others v Tendele Coal Mining (Pty) Ltd and Others (9 February 2021)

9 February 2021

The judgment of the Supreme Court of Appeal is available here.

Neutral citation: Global Environmental Trust and Others v Tendele Coal Mining (Pty) Ltd and Others (1105/2019) [2021] ZASCA 13 (09 February 2021)

Coram: Ponnan, Plasket and Nicholls JJA and Ledwaba AJA (with seperate minority judgment by Schippers JA)

Heard: 03 November 2020

Judgment delivered: 9 February 2021

Outcome: appeal dismissed

Summary:

The SCA considered whether the first respondent, Tendele Coal Mining (Pty) Ltd (Tendele), is mining without the necessary statutory authorisations and approvals. Tendele had been granted a mining right and an environmental management plan (EMP) issued under the Mineral and Petroleum Resources Development Act but did not have environmental authorisation under the National Environment Management Act (NEMA). The Applicants contended that the latter was required in order for mining operations to be conducted legally and brought and application for an interdict to prevent Tendele from continuing to mine unlawfully.

The Centre for Environmental Rights was admitted as amicus curiae and contended that the high court erred in its interpretation of the relevant statutory provisions and in ordering the appellants to pay Tendele’s costs.

Tendele argued that they did not require an environmental authorisation as their operations had commenced prior to the One Environmental System (OES) and due to the transitional arrangements contained in the OES, no such authorisation was required. Tendele maintained that its EMP was deemed to be an environmental authorisation under NEMA.

The Schippers JA confirmed in a minority judgment that “the absence of clarity and certainty concerning the correct interpretation [of the MPRDA and NEMA] will potentially weaken the environmental protections sought to be achieved by s24 of the Constitution and NEMA. This, in turn, would result in the flouting of environmental standards and undermine the rule of law.”

In the majority judgment however, the court held that the Applicants had failed to argue that Tendele was conducting specific listed activities which would have triggered the requirement for environmental authorisation. Because of this failure, the court declined to provide the proper interpretation of NEMA and dismissed the application because the requirements for an interdict had not been met

Tendele did not seek a cost order.

 

 

 

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Section 24of the Constitution of the Republic of South Africa, 1996

Everyone has the right to an environment that is not harmful to their health or well-being; and to have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures that prevent pollution and ecological degradation; promote conservation; and secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development.

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