Grace Masuku and Others v Minister of Mineral Resources and Others

The applicants sought to review and set aside decisions by the Minister of Mineral Resources (through the Director-General) to grant a mining right to Aquila Steel (South Africa) (Pty) Ltd on 25 April 2018, and to transfer that right to Motjoli Iron Ore (Pty) Ltd on 26 April 2018. The mining right related to property containing the Madimatle Mountain and Gatkop Cave, which the applicants claimed had spiritual, cultural, and environmental significance. The applicants included a social activist, the Madimatle Community, KARA Heritage Institute, and three property-owning companies. Aquila Steel had submitted its mining application on 26 July 2013 (before the One Environmental System came into effect on 8 December 2014). The applicants objected to the mining right on grounds including inadequate consultation, environmental concerns, heritage significance, and the absence of an environmental authorisation under NEMA. The Regional Mining Development and Environmental Committee (REMDEC) initially recommended refusal but later changed its recommendation. The applicants also sought a declaratory order that the Waterberg and Mopani District Municipalities were unsuitable for mining.

• Whether the applicants exhausted internal remedies as required by section 96 of the MPRDA before instituting judicial review
• Whether an environmental authorisation under NEMA was required before the mining right could be granted, given the transitional provisions to the One Environmental System
• Whether the consultation process with interested and affected parties was adequate
• Whether REMDEC's change in recommendation rendered the decisions to grant and transfer the mining right irrational or unlawful
• Whether the decisions to grant and transfer the mining right were rational and lawful
• Whether an environmental authorisation was required before consent to transfer the mining right could be granted
• Whether the court should grant a declaratory order that the Waterberg and Mopani District Municipalities are unsuitable for mining

The application was dismissed with costs. The decisions to grant the mining right to Aquila Steel and to transfer it to Motjoli Iron Ore were upheld. The declaratory relief regarding the Waterberg and Mopani District Municipalities was refused.

The binding legal principles established are: (1) The duty to exhaust internal remedies under section 96 of the MPRDA is peremptory and must be complied with before instituting judicial review, except in exceptional circumstances where a court grants an exemption. (2) Mining right applications submitted and accepted before 8 December 2014 must be assessed under the pre-amended MPRDA without regard to the One Environmental System amendments, in accordance with the transitional provisions in section 12(7) of the NEMA Amendment Act, 2008, and section 12(2)(c) of the Interpretation Act. (3) Under the pre-amended MPRDA, an environmental authorisation under NEMA was not a prerequisite for the grant of a mining right; approval of an environmental management programme sufficed. (4) Courts must exercise deference to administrative decision-makers with specialized expertise in technical matters such as mining and environmental assessment, and may not substitute their own views for those of the administrator unless the decision is not rationally connected to the evidence and information before the administrator. (5) Under section 11(2) of the MPRDA, consent to transfer a mining right requires assessment of whether the transferee is capable of complying with the obligations and terms of the right and satisfies the requirements of section 23, but does not require a fresh application for all authorisations—the transferee steps into the shoes of the transferor. (6) Courts should not grant declaratory relief that would materially affect the rights of numerous third parties who have not been cited or that would usurp executive functions in areas requiring specialized expertise and policy determinations.

The court made several non-binding observations: (1) There is significant debate in different High Court divisions about whether, before the One Environmental System, holders of mining rights had to comply with both MPRDA environmental requirements and obtain environmental authorisations under NEMA, though this issue did not need to be definitively resolved in this case. (2) The court noted the importance of balancing environmental protection with economic and social development as required by section 24 of the Constitution and the principles in Fuel Retailers, recognizing the interconnected nature of environmental protection and sustainable development. (3) The court observed that advisory bodies like REMDEC cannot make binding decisions and cannot be functus officio; their role is to advise and make recommendations to the decision-maker. (4) The court noted allegations of bias based on the executive chairman of Motjoli being a former deputy director-general of DMR, but found no evidence to support such allegations, citing Rustenburg Platinum Mines for the principle that allegations of bad faith must be supported by convincing evidence. (5) The court observed that while a bioregional plan under NEMBA is a tool for considering biodiversity in land-use planning and decision-making, it does not create power to prohibit mining—such power flows from the Protected Areas Act administered by the Minister of Environmental Affairs. (6) The court noted that Motjoli Iron Ore's mining right remains subject to compliance with other relevant laws and they may need to apply for other authorisations for activities ancillary to mining, at which point applicants may raise objections.

This case is significant for clarifying several important principles in South African mining and environmental law: (1) It reinforces the peremptory nature of the duty to exhaust internal remedies under section 96 of the MPRDA before approaching a court, following Bengwenyama Minerals and Dengetenge Holdings. (2) It provides important guidance on the application of transitional provisions when the One Environmental System came into effect on 8 December 2014, confirming that mining applications submitted before that date are governed by the pre-amended MPRDA and Interpretation Act principles. (3) It clarifies that the grant of an environmental authorisation under NEMA was not a prerequisite for mining rights granted under the pre-amended MPRDA, only an approved environmental management programme. (4) It emphasizes judicial deference to administrative decision-makers with specialized expertise in technical mining and environmental matters, following Bato Star Fishing and Minister of Environmental Affairs v Phambili Fisheries. (5) It confirms that the rationality standard of review is a low threshold that does not permit courts to substitute their own decisions for those of administrators. (6) It clarifies the interpretation of section 11 of the MPRDA regarding transfer of mining rights, holding that transferees step into the shoes of transferors without needing to reapply for all authorisations. (7) It demonstrates the limits of declaratory relief where such relief would affect numerous third parties and intrude on executive functions.