Duduzile Baleni and Others v Regional Manager: Eastern Cape Department of Mineral Resources and Others

The applicants are members of the Umgungundlovu community who live and work on land where titanium was discovered. The first applicant is the iNkosana (head) of the community. The fifth respondent (TEM) applied for a mining right under section 22 of the MPRDA over this land on 3 March 2015. The applicants are interested and affected parties under the MPRDA. Between March and August 2015, the applicants repeatedly requested a copy of TEM's mining right application from both the Regional Manager and TEM to enable them to meaningfully participate in the consultation process and exercise their rights to comment and object. Both the Regional Manager and TEM refused to provide the documents, directing the applicants to follow PAIA procedures instead. The applicants launched this application in November 2015 seeking declaratory relief that they are entitled to copies of mining right applications as of right under sections 10 and 22(4) of the MPRDA. TEM only provided the documents in February 2016, after the application was launched, though without conceding the applicants' legal entitlement.

• Whether interested and affected parties are entitled as of right under sections 10(1) and 22(4) of the MPRDA to be furnished with copies of mining right applications upon request to the Regional Manager
• Whether the procedures under the Promotion of Access to Information Act (PAIA) are the exclusive mechanism for obtaining such documents
• Whether the relief sought had become academic or moot after TEM provided the documents
• Whether declaratory relief should be granted in the circumstances
• The proper interpretation of sections 10 and 22(4) of the MPRDA in light of constitutional rights to administrative justice, access to information, and environmental rights
• The requirements for meaningful consultation with communities affected by mining applications

The court declared that interested and affected parties as contemplated by the MPRDA are entitled by sections 10(1) and 22(4) of the MPRDA, on request to the relevant Regional Manager, to be furnished with a copy of an application for a mining right, subject to the right to redact financially sensitive aspects. The fifth respondent (TEM) was ordered to pay the costs of both the applicants and the amicus curiae (Centre for Applied Legal Studies).

Interested and affected parties as contemplated by the MPRDA have a right, derived from sections 10(1) and 22(4) of the MPRDA read with constitutional rights in sections 24, 32 and 33 of the Constitution, to be furnished with copies of mining right applications upon request to the Regional Manager, without being required to follow PAIA procedures. This right is necessary to enable meaningful consultation within the statutory timeframes and to give effect to the objects of the MPRDA, which include ensuring that communities participate in and benefit from mining on their land. Communities living on land subject to mining applications have direct socio-economic and environmental rights that distinguish them from the general public, and these rights cannot be adequately protected through the lengthier PAIA process. The right extends to all documents necessary for meaningful participation, subject only to redaction of genuinely financially sensitive information.

The court observed that ideally, persons in the position of the applicants should be entitled to a copy of the mining right application automatically when it is submitted to the Regional Manager, even before they request it, though this was not the relief sought. The court noted concerns about the DMR's capacity to process PAIA requests and the low success rate of such applications as evidenced by research from the Centre for Environmental Rights. The court suggested that the DMR PAIA Manual, being an internal document subject to annual updates, cannot be relied upon to secure the rights of affected communities. The judgment also affirmed the principle from earlier cases that communities hold land in trust for future generations and have a trusteeship responsibility to protect the environment. The court emphasized that constitutional litigation should not be determined by the financial capacity of parties but by whether costs awards would hinder or promote constitutional justice (applying Biowatch principles).

This judgment is significant in South African mining and environmental law as it clarifies that affected communities have an automatic right to access mining right applications under the MPRDA framework itself, without being relegated to the lengthier PAIA procedures. It reinforces the constitutional rights to meaningful consultation, access to information, and environmental protection in the context of mining applications. The judgment emphasizes that communities living on land subject to mining applications are not merely passive observers but have substantive participatory rights that must be facilitated expeditiously. It advances the constitutional principle of sustainable development and recognizes communities' role as custodians of land and resources for future generations. The decision has important implications for how the Department of Mineral Resources and mining companies must engage with affected communities during the application process, ensuring that consultation is meaningful rather than merely procedural.