Mfolozi Community Environmental Justice Organisation and Others v Minister of Minerals and Energy and Others

Five applicants challenged three decisions relating to Tendele Coal Mining's Mining Right application for Areas 4 and 5 covering 222 km² near Somkhele, KwaZulu-Natal. The applicants included community organizations and environmental trusts. Tendele had been mining in the area since 2005/6 under different mining rights. The challenged decisions were: (1) the Director General's decision of 31 May 2016 granting the Mining Right; (2) the Regional Manager's decision of 26 October 2016 approving Tendele's Environmental Management Programme (EMPr); and (3) the Minister's decision of 15 June 2018 dismissing the internal appeal. The applicants complained that Tendele's public notices described the project as 32 km² (10 small sites) rather than the 222 km² actually covered. Tendele's Scoping Report and EIA processes were deficient - consultation with I&APs had not been completed, and only 7 expert studies supported the EMPr (with some dating from 2002 and 2009). About 27 additional expert studies were commissioned post-award. The Regional Manager issued a directive in December 2013 requiring proper consultation with affected households, but Tendele's consultants responded that they could not comply for various reasons. Tendele obtained consent from the Mpukunyoni Traditional Council (MTC) in February 2013, before adequate scoping or impact assessments were conducted. During the proceedings, Tendele made concessions and decided to abandon approximately 195 km² (92%) of the mining right, retaining only about 8% covering three areas.

• Whether Tendele's public participation process complied with the MPRDA Regulations and Guidelines for Compilation of Scoping Reports
• Whether Tendele's Scoping Report and Environmental Impact Assessment (EIA) complied with Regulation 49 of the MPRDA Regulations
• Whether Tendele obtained lawful consent from informal land rights holders as required by the Interim Protection of Informal Land Rights Act (IPILRA)
• Whether the consent obtained from the Mpukunyoni Traditional Council was informed consent based on adequate material information about the mining project
• Whether the Traditional Council maintained proper records as required by the Traditional Leadership and Governance Framework Act
• What constitutes a just and equitable remedy in circumstances where the applicant mining company has made significant concessions and seeks to retain only a small portion of the originally granted mining right

1. The Director General's decision of 31 May 2016 awarding the Mining Right to Tendele, and the Regional Manager's decision of 26 October 2016 approving Tendele's EMPr, are declared invalid but not set aside. 2. The Minister's decision of 15 June 2018 dismissing the appeal is declared invalid and set aside. 3. The appeal is remitted back to the Minister for reconsideration in accordance with the findings of the judgment. 4. In reconsidering the appeal, the Minister is directed to consider: (a) any information that the Applicants and Tendele wish to place before him; (b) any information, comments, and submissions from I&APs. 5. Tendele is directed to notify I&APs of their entitlement to participate in the appeal process by publicising the contents widely. 6. Tendele must ensure that the public participation process complies with the requirements of (a) Public Participation Guidelines in terms of the National Environmental Act, 1998 and (b) Chapter 6 of the Environmental Impact Assessment Regulations, 2014. 7. The First, Second, Third and Fourth respondents are ordered, jointly and severally, to pay the costs of the applicants, including the costs occasioned by the employment of two counsel (Senior and Junior), including costs of the Rule 7 application.

The binding legal principles established are: (1) Under the MPRDA Regulations, public participation during the scoping phase is mandatory and must be completed before submission of the Scoping Report - consultation cannot be "yet to be concluded" at the time of submission. (2) Public notices for mining right applications must accurately describe the full extent of the area covered by the application; limiting notices to smaller discrete sites when the application covers a much larger area constitutes a material breach of public participation requirements. (3) Under IPILRA, consent to deprivation of informal land rights must be "genuine and informed consent," meaning it must be based on substantial knowledge concerning the nature and effect of the transaction, including material information about environmental impacts and consequences of the mining activities. (4) Traditional councils, as organs of state established under the Traditional Leadership and Governance Framework Act, must maintain proper records of their decision-making processes; failure to maintain such records means that subsequent affidavit evidence attempting to reconstruct events cannot be accepted as proof of compliance with statutory requirements. (5) The protective provisions of IPILRA, including requirements for compensation and procedural safeguards, must be interpreted purposively and consistently with section 25(6) of the Constitution; interpretations that water down protections for informal rights holders are impermissible. (6) Regional Managers under the MPRDA have a duty to ensure compliance with consultation requirements and should not accept deficient Scoping Reports even when applicants provide reasons for non-compliance. (7) Under section 172(1)(b) of the Constitution, courts have wide discretion to craft just and equitable remedies that balance multiple competing interests while vindicating constitutional values, including the option to declare decisions invalid without setting them aside and remitting matters for reconsideration with specific directives.

The court made several non-binding observations: (1) The court noted with concern Tendele's attitude during the application process, describing it as an "unbridled horse" that showed little regard for the law, and characterized certain comments in Tendele's correspondence as displaying offensive stereotyping of community members. (2) The court observed that about 27 expert studies were commissioned post-award of the mining right, referring to these as "floating studies" with no connection to the EMPr, suggesting they may have been procured to influence the court's decision rather than to comply with statutory requirements. (3) The court commented that Tendele's interpretation of IPILRA, which would limit compensation and procedural protections only to cases of "disposal" of land, exemplifies the kind of "blinkered peering at an isolated provision in a statute" that courts have warned against. (4) The court noted that the Mpukunyoni community's customs and practices do not allow the Inkosi to make decisions concerning households without involving or talking to members of individual households, though this point was not necessary for the decision. (5) The court expressed concern about the Regional Manager's acceptance of Tendele's deficient Scoping Report despite having issued a directive identifying the deficiencies, stating this was "an affront to the law and it should have never been allowed." (6) The court declined to award punitive costs despite the applicants' request, suggesting the case did not warrant such an exceptional costs order even though Tendele defended positions that were ultimately found to be indefensible.

This case is significant for establishing strict requirements for public participation and scoping processes in mining right applications under the MPRDA. It reinforces that mining companies cannot limit the scope of environmental impact assessments and public notices to smaller areas when the actual mining right covers a much larger area. The judgment provides important interpretation of the Interim Protection of Informal Land Rights Act (IPILRA), clarifying that: (1) consent must be "genuine and informed consent" based on substantial material information about the mining project and its impacts; (2) traditional councils must maintain proper records of decision-making processes as required by their governing statutes; (3) compensation requirements under IPILRA are not limited only to situations where deprivation is caused by "disposal" of land; (4) the protective provisions of IPILRA must be interpreted purposively to give effect to section 25(6) of the Constitution. The case demonstrates the courts' willingness to craft pragmatic remedies under section 172(1)(b) of the Constitution that balance competing interests, including employment, economic contributions, and community rights, while still vindicating constitutional values. It emphasizes that traditional authorities acting as organs of state must comply with governance and record-keeping requirements, and that failure to do so will result in rejection of evidence attempting to reconstruct decisions from memory years later.