Centre for Environmental Rights – Advancing Environmental Rights in South Africa

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.

The Applicants appealed to the Constitutional Court which dismissed the appeal application on 11 January 2022.