Global Environmental Trust and Others v Tendele Coal Mining (Pty) Ltd and Others

The first respondent, Tendele Coal Mining (Pty) Ltd (Tendele), operated the Somkhele Mine in Mtubatuba, KwaZulu-Natal since 2006 pursuant to mining rights and approved Environmental Management Programmes (EMPs) under the Mineral and Petroleum Resources Development Act 28 of 2002 (MPRDA). The mine comprises five areas on Reserve No 3 with separate mining rights granted in 2007, 2011, 2013 and 2016, and active mining occurring primarily in Area 1 and the extended Area 2 (KwaQubuka and Luhlanga areas). The appellants - Global Environmental Trust, Mfolozi Community Environmental Justice Organisation, and a local resident - sought an interdict to stop all mining operations, alleging that Tendele was mining without necessary statutory authorisations and approvals: (i) no environmental authorisation under s 24 of the National Environmental Management Act 107 of 1998 (NEMA) for listed activities; (ii) no municipal land use approval under the KwaZulu-Natal Planning and Development Act 6 of 2008 and the Spatial Planning and Land Use Management Act 16 of 2013 (SPLUMA); (iii) no waste management licence under the National Environmental Management: Waste Act 59 of 2008; and (iv) no written approval under s 35 of the KwaZulu-Natal Heritage Act 4 of 2008 for relocation of traditional graves. The KwaZulu-Natal Division of the High Court, Pietermaritzburg dismissed the application with costs. The appellants appealed with leave of the high court. The third appellant withdrew from the appeal. Various amici curiae participated, including the Centre for Environmental Rights and community and labour groups supporting the mine's continuation.

• Whether the holder of a mining right and approved Environmental Management Programme under the MPRDA requires environmental authorisation under s 24 of NEMA for listed activities
• The interpretation and interplay of the MPRDA and NEMA concerning environmental authorisations for mining operations
• The effect of the transitional provisions in s 12 of the National Environmental Management Amendment Act 62 of 2008 on mining operations lawfully conducted prior to the One Environmental System implemented on 8 December 2014
• Whether the KwaZulu-Natal Planning and Development Act and SPLUMA require municipal land use approval for mining operations predating those statutes
• Whether a waste management licence under the National Environmental Management: Waste Act is required in light of transitional provisions
• Whether non-compliance with the KwaZulu-Natal Heritage Act regarding relocation of ancestral graves justifies an interdict stopping all mining operations
• Whether the appellants established the requirements for an interdict, including a reasonable apprehension of future harm
• The appropriate relief where mining operations are found to be unlawful but have significant socio-economic impacts on local communities
• The proper approach to costs in public interest environmental litigation under s 32(2) of NEMA

MAJORITY ORDER: 1. The appeal succeeds with costs, including the costs of two counsel. 2. The order of the high court is set aside and replaced with the following: 2.1 It is declared that the commencement or continuation of mining operations by Tendele on the specified properties is unlawful and unconstitutional, unless and until it has been granted environmental authorisation in terms of NEMA to undertake the relevant listed activities. 2.2 It is declared that Tendele's mining operations are unlawful and unconstitutional unless and until it has obtained written approval in terms of s 35 of the KwaZulu-Natal Heritage Act 4 of 2008 to damage, alter, exhume or remove any traditional graves. 2.3 The order in paragraph 2.1 is suspended for 12 months to enable Tendele to obtain the requisite environmental authorisation, with provision for application for extension if necessary. 2.4 Tendele is ordered to pay the costs of the application, including the costs of two counsel. DISSENT: Would have dismissed the appeal (with Tendele not seeking costs).

MAJORITY RATIO DECIDENDI: 1. Environmental authorisation under s 24 of NEMA for listed activities is a separate and additional requirement to a mining right and approved EMP under the MPRDA. The two statutes serve different purposes within the competence of different authorities and apply in tandem to give full effect to the constitutional right to environmental protection. 2. An EMP approved under the MPRDA is not the same as, and does not constitute, an environmental authorisation under NEMA. NEMA defines environmental authorisation as the authorisation by a competent authority of a listed activity. An EMP under NEMA (as defined in s 1 and contemplated in s 24N) is only one of several prescribed environmental management instruments and does not determine which activities an applicant is authorised to undertake. 3. The transitional provision in s 12(4) of the 2008 NEMA Amendment Act (providing that an EMP approved under the MPRDA "must be regarded as having been approved in terms of NEMA") means only that such an EMP is accepted as an EMP under NEMA, not that it has the status of an environmental authorisation for listed activities under NEMA. 4. Mining operations inevitably involve the performance of listed activities as identified in the EIA regulations (such as clearing indigenous vegetation over one hectare, establishing infrastructure for bulk water transportation, facilities for fuel storage, storage of explosives, etc.) which require environmental authorisation under s 24F(1)(a) of NEMA. 5. The MPRDA does not "cover the field" regarding environmental impacts of mining. Section 23(6) of the MPRDA expressly renders a mining right subject to "any relevant law." Sections 24(8)(a), 24K and 24L of NEMA (inserted in 2009) make clear that: (a) authorisations under other laws do not absolve an applicant from obtaining environmental authorisation under NEMA; (b) authorities may coordinate requirements and avoid duplication; and (c) a competent authority may regard an authorisation under other legislation as an environmental authorisation if it meets NEMA's requirements. 6. Where mining operations are found to be unlawful for lack of required authorisations, but cessation would have catastrophic socio-economic consequences for employees and communities, a court may exercise its power under s 172(1)(b) of the Constitution to grant a pragmatic remedy - a declaratory order with a suspension period to allow regulatory compliance - rather than an immediate interdict. 7. In public interest environmental litigation under NEMA, a costs order against an unsuccessful applicant may not be made where the court fails to consider s 32(2) of NEMA, which protects applicants acting reasonably in the public interest or the interest of protecting the environment who have made due efforts to use other means to obtain relief. DISSENTING RATIO (Ponnan JA): 1. In motion proceedings, an applicant must raise in the founding affidavit both the legal issues and the essential factual evidence to discharge the onus of proof. Where an applicant alleges breach of s 24F(1)(a) of NEMA (prohibition on commencing listed activities without environmental authorisation), the applicant must at minimum identify: (a) the specific listed activity alleged to have been commenced without authorisation; and (b) the date of commencement. 2. It is impermissible for an applicant to make out a new case in reply or on appeal. A respondent cannot be expected to supply missing allegations from an applicant's case, even where facts are peculiarly within the respondent's knowledge, unless there is something substantive to deny or answer.

MAJORITY OBITER DICTA: 1. The court observed that open pit mining of necessity involves clearing indigenous vegetation covering more than one hectare, and that given the nature and extent of Tendele's operations (one of the largest open-pit anthracite reserves in South Africa), it is an "inescapable inference" that Tendele conducts listed activities. 2. The court noted that prior to 8 December 2014 (implementation of One Environmental System), mining per se was not a listed activity, but anyone intending to mine would of necessity perform certain activities which were listed activities (e.g. establishing infrastructure for bulk water transportation, facilities for fuel storage, clearing indigenous vegetation covering more than 1 hectare) and would therefore require environmental authorisation for those activities. 3. The court observed that the absence of clarity and certainty concerning correct interpretation of the NEMA-MPRDA relationship "will potentially weaken the environmental protections sought to be achieved by s 24 of the Constitution and NEMA" and "would result in the flouting of environmental standards and undermine the rule of law." 4. The court stated it was "baffling" that the high court criticized the founding affidavit for not establishing a proper cause of action when it accepted that prior to 8 December 2014 anyone intending to mine would of necessity undertake listed activities requiring environmental authorisation. 5. Regarding Tendele's claim that it "did not appreciate the process" for relocating traditional graves and that failure to obtain authorisation "was due to a bona fide oversight," the court observed this was "improbable" given that Tendele's consultant had advised it in 2007 that grave relocation needed to be dealt with separately from a heritage impact assessment, yet Tendele only engaged AMAFA Heritage Council in 2017 - some 10 years later. 6. The court emphasized the importance of gravesites to the community, quoting at length from the 2007 consultant's report describing the religious significance of gravesites in Zulu culture and ancestor worship practices. 7. The court noted that "whether the relocation of graves is unlawful cannot be decided by reference to the view taken by AMAFA Heritage Council" - it is common ground that Tendele unlawfully removed or altered traditional graves in violation of the KZN Heritage Act, which was "plainly unlawful" and "conduct grossly inconsistent with the Constitution, and invalid." 8. The court observed that the rule of law, enshrined in s 1 of the Constitution, "requires that legislation be enacted and publicised in a clear and accessible manner to enable people to regularise their conduct and affairs accordingly. A decision on the proper construction of NEMA is necessary for mines to regulate their conduct and affairs lawfully." 9. Regarding socio-economic impacts, the court noted the mine is the "primary driver of economic activity in Mtubatuba" and termination of operations "even temporarily, would be the death knell of the Mtubatuba economy and would result in the loss of the livelihood of the Mpukunyoni community." 10. The court stated that a notice of abandonment (of a costs order) "is a unilateral act which operates ex nunc and not ex tunc. It precludes the party who has abandoned its rights under the judgment from enforcing it, but the judgment still exists with all its intended legal consequences" - hence the need to set aside the costs order on appeal. DISSENTING OBITER DICTA (Ponnan JA): 1. Ponnan JA expressed puzzlement that the high court judge, having found that the appellants "had simply failed to make out a proper case for an interdict in their founding papers" and that "the factual allegations relied on were, for the most part, incorrect and unsubstantiated," nonetheless granted leave to appeal on the basis of "issues of interpretation and questions of legality that may arise" without explaining what those were or how one would get to those issues given the unreliability of the appellants' allegations. 2. The dissent noted that the interdict sought was "far reaching" - if granted, it would close Tendele's operations - which made it "more the reason, one would think, for a proper case to have been made out on the papers." 3. Ponnan JA observed that Annexure R1 (containing a list of activities requiring environmental authorisation under NEMA attached to the replying affidavit) represented "the high-water mark of the appellants' case" but even there, "the appellants made no effort, even in reply, to identify which of the activities Tendele was allegedly undertaking, nor when Tendele allegedly commenced them." 4. The dissent emphasized that "a party cannot be expected to trawl through lengthy annexures to the opponent's affidavit and to speculate on the possible relevance of facts therein contained. Trial by ambush cannot be permitted." 5. Regarding the waste management licence issue, the dissent observed that "the interdict that the appellants seek is plainly too broad in relation to the right sought to be protected. The alleged unauthorised undertaking of waste management activities in terms of the Waste Act could not possibly entitle the appellants to an interdict shutting down Tendele's entire mining operation. At best, they would only be entitled to relief in respect of a specified listed activity" (which was not identified). 6. The dissent noted that Tendele "has unequivocally committed itself to working with Amafa and the community to ensure that future relocations comply with the letter and the spirit of the law" and that "there are no facts in this matter that would justify any reasonable apprehension that Tendele will again relocate or exhume graves without the appropriate approval."

This case is significant in South African environmental and mining law for the following reasons: 1. Clarification of NEMA-MPRDA Relationship: The majority judgment provides important clarification that NEMA and the MPRDA operate in tandem, not as mutually exclusive regimes. An approved EMP under the MPRDA does not constitute environmental authorisation under NEMA for listed activities. This interpretation gives full effect to the constitutional right to environmental protection in s 24 and NEMA's role as the framework legislation for environmental protection. 2. Listed Activities and Mining: The judgment confirms that mining operations inevitably trigger listed activities requiring environmental authorisation under NEMA (such as clearing indigenous vegetation, establishing water infrastructure, fuel storage, etc.), even where mining rights and EMPs have been granted under the MPRDA. 3. Integrated Environmental Management: The case emphasizes the constitutional imperative of integrated environmental management and the mandatory application of NEMA's s 2 principles to all decisions significantly affecting the environment, including mining decisions under the MPRDA. 4. Transitional Provisions: The majority's interpretation of s 12(4) of the 2008 NEMA Amendment Act clarifies that treating an MPRDA EMP as "approved in terms of NEMA" does not convert it into an environmental authorisation - it merely recognizes it as an EMP under NEMA, which is only one of several environmental management instruments. 5. Just and Equitable Relief: The case demonstrates the courts' pragmatic approach to remedies under s 172(1)(b) of the Constitution in environmental cases, balancing environmental protection with socio-economic realities. The court crafted a suspended declaratory order allowing time for regulatory compliance while protecting employment and community interests. 6. Costs in Public Interest Litigation: The judgment reinforces the protective costs regime in s 32(2) of NEMA for litigants acting reasonably in the public interest to protect the environment, potentially encouraging public interest environmental litigation. 7. Statutory Interpretation: The case provides guidance on interpretive principles in environmental law, emphasizing purposive interpretation consistent with constitutional rights, the presumption against implied repeal, and the principle that statutes should be interpreted to give environmental rights their fullest effect. 8. Procedural Rigor: The dissent serves as an important reminder of the need for proper pleadings in motion proceedings, particularly in complex regulatory matters where specific statutory violations must be clearly alleged and proved. The case has significant implications for the mining industry regarding compliance obligations and for environmental regulation more broadly regarding the interaction of sector-specific and framework environmental legislation.