Assmang Proprietary Limited v The Minister of Mineral Resources and Energy and Others

Assmang is the owner of surface rights to Portion 9 of the farm N'chawning 267 in Kuruman, Northern Cape, and holds a converted mining right for manganese ore under the MPRDA. Assmang operates the Black Rock Mine. Three third respondents (PPG Gemstone, Matebesi Family Trust, and Pitsoyagae Gabriel Matebesi) lodged mining permit applications to mine sugilite gemstones in areas within Assmang's mining area. Assmang was unaware of these applications until 27 May 2021, approximately 16 months after lodgment, when a representative from the Regional Manager's office and Mr. Matebesi arrived unannounced at the mine. Despite Assmang's pending section 96 appeals against acceptance of the mining permit applications and section 10 objections, the Regional Manager granted environmental authorisations to the third respondents on 28 May 2021, 17 June 2021, and 30 June 2021 respectively. Assmang only became aware of the granted environmental authorisations on 9 September 2021 when it received records of decision. Assmang contends it was never consulted during the compilation of the Basic Assessment Reports (BAR) and Environmental Management Programme Reports (EMPr), and that these documents contain fundamentally flawed and misleading information about the nature and location of proposed operations.

• Whether Assmang was required to exhaust internal remedies by appealing to the Environmental Minister under section 43(1) of NEMA before instituting review proceedings
• Whether the review applications were instituted within the prescribed time period
• Whether the environmental authorisations were granted based on misrepresentation of material facts, specifically regarding consultation with Assmang
• Whether the failure to consult with Assmang rendered the administrative action procedurally unfair under PAJA
• Whether the BAR and EMPr contained material inaccuracies that tainted the lawfulness of the environmental authorisations
• What constitutes just and equitable relief under section 8(1)(c)(ii)(aa) of PAJA

In all three case numbers (13164/2022, 13165/2022, and 13166/2022), the court: (1) Reviewed and set aside the Regional Manager's decisions granting environmental authorisations to the respective third respondents; (2) Referred the applications for environmental authorisation back to the Regional Manager for reconsideration, subject to the third respondents consulting with Assmang and the parties signing consultation minutes to supplement the applications; (3) Ordered the first and second respondents (state respondents) to pay the costs of the applications jointly and severally, including costs of two counsel.

The binding legal principles established are: (1) Where an applicant for environmental authorisation fails to notify an affected mining right holder as required by regulation 4 of the National Appeal Regulations, the prescribed appeal period under section 43 of NEMA does not commence, and there is no internal remedy that must be exhausted before instituting review proceedings under PAJA; (2) Misrepresentation of material facts regarding consultation with existing mining right holders in BAR and EMPr documents constitutes grounds for reviewing and setting aside environmental authorisations; (3) Consultation with existing mining right holders actively conducting operations on the same property is imperative before granting environmental authorisation to assess cumulative environmental impacts, and such consultation is not a formality that can be addressed after authorization is granted; (4) Failure to consult with materially affected parties renders administrative action procedurally unfair under PAJA; (5) Courts should exercise restraint in substituting administrative decisions and prefer remittal to the decision-maker where no exceptional circumstances exist, particularly where the ultimate decision-maker is not a party to the proceedings.

The court observed that when the Regional Manager was informed that Assmang denied being consulted, he should have actively investigated the averments rather than raising technical points irrelevant to the environmental authorisation decisions. The court noted that when it becomes apparent that cumulative impacts of existing and proposed mining operations might not have been sufficiently canvassed, the environmental authorisation should have been suspended. The court commented that the third respondents' absence and silence in the proceedings 'speak louder than words' regarding the consultation issue. The court emphasized that the overall goal of requiring environmental authorisation is to protect human health and the environment, and that existing mining right holders cannot be considered merely akin to landowners whose property rights might be affected. The court noted that only through effective consultation with existing mining right holders can prospective miners properly determine the extent of existing activities and plan accordingly. The court also observed that the doctrine of separation of powers, entrenched in the Constitution, constrains courts from stepping into decision-makers' shoes absent exceptional circumstances.

This case establishes important principles regarding procedural fairness in environmental authorisation processes under NEMA where mining operations overlap. It clarifies that consultation with existing mining right holders is not merely a formality but a substantive requirement that cannot be rectified post-authorization. The judgment demonstrates the interplay between MPRDA and NEMA in regulating mineral resource development and associated environmental impacts. It affirms that section 38A(1) of MPRDA designates the Minister of Mineral Resources as the responsible authority for implementing NEMA's environmental provisions related to mining activities. The case provides guidance on exhaustion of internal remedies under PAJA, establishing that failure to provide prescribed notification prevents the commencement of appeal periods and thus eliminates the internal remedy that must be exhausted. It also illustrates judicial restraint in substituting administrative decisions, particularly where the ultimate decision-maker is not a party to proceedings, preferring remittal over substitution except in exceptional circumstances.