Sasol Mining (Pty) Ltd held extensive mineral rights over three farms in the Sasolburg district fronting the Vaal River. In May 1996, Sasol Mining applied to the Director for a mining licence under section 9 of the Minerals Act 50 of 1991 to conduct open-cast coal mining near the southern bank of the Vaal River. Save the Vaal Environment, an unincorporated association of property owners and concerned residents living along the Vaal River, along with other individual respondents, sought to oppose the application on environmental grounds. Their concerns included: destruction of the Rietspruit wetland (approximately 1000 hectares that purifies water flowing into the Vaal Barrage), threats to fauna and flora (254 bird species, 44 mammal species, 33 reptile and amphibian species, and red data plants), pollution (noise, light, dust, water), loss of water quality affecting recreation, and decreased property values. In July 1996, Save's attorney requested a hearing to oppose the application. The Director refused to hear Save, stating he was not obliged to do so at that stage. On 22 May 1997, the Director issued the mining licence to Sasol Mining without affording the respondents a hearing. The respondents successfully took the Director's decision on review in the High Court.
The appeal was dismissed with costs, including the costs of two counsel. The judgment of the High Court (Cassim AJ) granting the review was upheld.
The binding legal principle established is that the audi alteram partem (right to be heard) rule applies when an application for a mining licence is made to the Director under section 9 of the Minerals Act 50 of 1991. Interested parties with environmental concerns are entitled to be heard at this stage. Nothing in section 9 or the rest of the Act either expressly or by necessary implication excludes the application of the rule. The granting of a mining licence under section 9 is a preliminary decision that lays the necessary foundation for subsequent decisions that may have grave environmental consequences, and therefore triggers the application of the audi rule. Environmental rights under section 24 of the Constitution constitute substantive rights or interests capable of being prejudicially affected by administrative decisions, thereby requiring procedural fairness. The constitutional recognition of environmental rights as fundamental, justiciable human rights requires that environmental considerations be accorded appropriate recognition and respect in administrative processes. A hearing at the section 39 environmental management programme stage cannot substitute for or replace a hearing at the section 9 licensing stage, as they serve different purposes and the section 39 hearing may never occur or may occur only after mining has commenced.
The Court made several non-binding observations: (1) The hearing required need not necessarily be formal; interested parties should at least be notified of the application and given an opportunity to raise objections in writing, with a more formal procedure initiated if necessary. (2) The Court adopted the Brundtland Report criterion of sustainable development: that development should meet present needs without compromising the ability of future generations to meet their own needs. (3) The Court observed that 'together with the change in the ideological climate must also come a change in our legal and administrative approach to environmental concerns,' signaling the need for a transformed approach to environmental protection in the post-apartheid constitutional order. (4) The Court noted the prohibition in section 30(1) of the Companies Act should be kept within its proper bounds, with its underlying purpose being to prevent mischief arising from trading undertakings being carried out by large fluctuating bodies, not to prohibit non-commercial associations. (5) The Court observed that mining can do enormous damage to the environment and ecological systems, providing policy justification for applying the audi rule in this context.
This case is a landmark in South African environmental and administrative law. It established that the audi alteram partem rule applies at the mining licence application stage under section 9 of the Minerals Act 50 of 1991, not merely at the later environmental management programme stage under section 39. The judgment is significant for: (1) Recognizing environmental rights under section 24 of the Constitution as substantive rights capable of triggering procedural fairness requirements in administrative decision-making. (2) Requiring administrative authorities in the mining sector to afford interested parties an opportunity to raise environmental objections before granting mining licenses. (3) Emphasizing that environmental considerations must be accorded appropriate recognition and respect in administrative processes, reflecting the constitutional elevation of environmental rights to fundamental, justiciable human rights. (4) Promoting the Brundtland principle of sustainable development - that development must meet present needs without compromising the ability of future generations to meet their own needs. (5) Signaling a change in the legal and administrative approach to environmental concerns in the post-apartheid constitutional dispensation. The case has been widely cited in subsequent environmental law jurisprudence and demonstrates the courts' willingness to give substantive effect to constitutional environmental rights in administrative law contexts.