Minister of Mineral Resources v Stern & others; Treasure the Karoo Action Group & another v Department of Mineral Resources & others

In June 2015 the Minister of Mineral Resources promulgated the Regulations for Petroleum Exploration and Production, 2015 under s 107(1) of the Mineral and Petroleum Resources Development Act 28 of 2002 (MPRDA). These regulations created a regulatory framework governing, inter alia, environmental authorisation processes and environmental management norms and standards for petroleum exploration and production, including hydraulic fracturing (fracking). Farmers and civil society organisations with interests in the Karoo challenged the regulations in two High Court applications (the Stern matter and the TKAG matter), arguing that the Minister lacked the statutory power to make regulations dealing with environmental matters, especially after the introduction of the One Environmental System, which positioned the National Environmental Management Act 107 of 1998 (NEMA) as the sole environmental framework. The High Courts reached different conclusions, leading to consolidated appeals before the Supreme Court of Appeal.

In the Stern matter, the appeal by the Minister of Mineral Resources was dismissed with costs. In the TKAG matter, the appeal was upheld, the High Court order was set aside, and the Regulations for Petroleum Exploration and Production, 2015 were reviewed and set aside in their entirety, with costs including the costs of two counsel.

The case is significant for clarifying the allocation of regulatory authority over environmental matters in the context of mining and petroleum activities following the One Environmental System. It affirms that environmental regulation, including environmental authorisations and standards, must be made under NEMA by the Minister of Environmental Affairs, and not under the MPRDA by the Minister of Mineral Resources. The judgment reinforces the principle of legality and limits ministerial regulation-making powers to those expressly conferred by statute.