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Minister of Mineral Resources v Stern N.O. and others; Treasure the Karoo Action Group and another v Minister of Mineral Resources

4 July 2019

Supreme Court of Appeal 

Neutral citation: Minister of Mineral Resources v Stern & others (1369/2017) and Treasure the Karoo Action Group & another v Department of Mineral Resources & others (790/2018) [2019] ZASCA 99 (4 July 2019)

Date: 4 July 2019

Judges: Van der Merwe JA (Cachalia, Mbha and Mathopo JJA and Davis AJA concurring)

This matter concerned the legality of the Regulations for Petroleum Exploration and Production, 2015, published by the Minster of Mineral Resources (Minister) on 3 June 2015 in terms of the Mineral and Petroleum Resources Development Act, 2002 (MPRDA). The Court Court upheld the decision of the Grahamstown High Court in the matter of Stern N.O. and others v Minister of Mineral Resources (see below) to set aside the making of those regulations on the basis that the Minister was not authorised in terms of the MPRDA to make those regulations.  The provision of the MPRDA on which the Minister of Mineral Resources relied to make the regulations had been repealed in 2013 and therefore no longer existed. The Court also upheld the appeal in the matter of Treasure the Karoo Action Group and another v Minister of Mineral Resources (see below), in which the Pretoria High Court upheld the legality of the regulations.

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Stern N.O. and others v Minister of Mineral Resources

High Court of the Republic of South Africa, Eastern Cape Division, Grahamstown Case No. 5762/2015

Date: 17 October 2017

In this matter, the Grahamstown High Court set aside the Regulations for Petroleum Exploration and Production, 2015 published by the Minister of Mineral Resources on 3 June 2015 in terms of the Mineral and Petroleum Resources Development Act, 2002 (MPRDA) principally because the Minister of Mineral Resources was not authorised to make the regulations. The provision of the MPRDA on which the Minister of Mineral Resources relied to make the regulations had been repealed in 2013 and therefore no longer existed.

The Court also found that the making of the regulations was procedurally unfair and that it unlawfully “amended” the One Environmental System.

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Treasure the Karoo Action Group and another v Minister of Mineral Resources

High Court of the Republic of South Africa, Gauteng Division, Pretoria Case no. 95261/15

Date: 16 May 2018

Judge: EF Dippenaar AJ

In this matter, the applicants sought to have the Regulations for Petroleum Exploration and Production, 2015 (regulations), made in terms of the Mineral and Petroleum Resources Development Act, 2002 (MPRDA), set aside on review. the applicants argued that the regulations were ultra vires the MPRDA and that they are in any event vague and are ineffective as environmental management tools.

The court rejected the applicant’s arguments. It held that the authorising provisions in the MPRDA should be read in context of the One Environmental System as a whole. It also rejected the other arguments on the basis that, in the Court’s opinion, there was no evidence on the papers that the regulations are vague or ineffective.

The matter was argued on the premise that the act of making regulations does not constitute administrative action, which was the approach followed in the matter of Stern N.O. and others v Minister of Mineral Resources.

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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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