Mfolozi Community Environmental Justice Organisation and Others v Tendele Coal Mining (Pty) Ltd and Others

This case arose following a review judgment by Bam J in the Gauteng High Court which declared invalid the decisions by the Director General of the Department of Mineral Resources and Energy granting a mining right to Tendele Coal Mining (Pty) Ltd, and the Regional Manager's approval of the Environmental Management Programme (EMPr), but specifically ordered that these decisions were "not set aside". The review found non-compliance with MPRDA requirements, defective scoping and environmental impact assessment processes, inadequate public participation, and failure to obtain consent under the Interim Protection of Informal Land Rights Act (IPILRA). The review judgment remitted the appeal to the Minister for reconsideration in accordance with its findings. Tendele operated the Somkhele Mine since 2006, an open cast anthracite mine employing thousands and supplying critical materials to South African industry. The mine was placed on care and maintenance in July 2022 after Areas 1-3 were depleted. Tendele sought to extend operations to Areas 4 and 5 (Emalahleni, Ophondweni, and Mahujini). In February 2023, Tendele issued letters indicating its intention to commence mining and related activities in these new areas. The applicants, environmental justice organizations and affected community members, sought an interim interdict to prevent Tendele from commencing these activities pending finalization of the remitted appeal process.

• Whether the judgment declaring the mining right and EMPr invalid but 'not set aside' permitted Tendele to continue mining operations pending the Minister's reconsideration of the appeal
• What constitutes a 'just and equitable remedy' under section 172(1)(b) of the Constitution where administrative decisions are declared invalid
• The proper interpretation of a court judgment, particularly the meaning and effect of declaring decisions invalid but 'not set aside'
• The application of the Oudekraal principle regarding invalid administrative conduct that continues to exist in fact
• Whether the requirements for an interim interdict were satisfied, particularly the establishment of a prima facie right
• Whether the applicants had exhausted alternative remedies, specifically the remedy under section 96(2)(a) of the MPRDA to apply to the Minister for suspension of the mining right pending appeal
• Whether non-compliance with IPILRA and public participation requirements constituted independent grounds for interdictory relief separate from the review judgment

The application for interim interdictory relief in Part A of the Notice of Motion was dismissed. No costs order was made as neither Tendele nor the other opposing respondents sought costs against the applicants.

A court judgment declaring administrative decisions invalid but expressly stating they are 'not set aside' constitutes a just and equitable remedy under section 172(1)(b) of the Constitution that permits the decisions to continue operating in fact and law, notwithstanding their legal invalidity. The Oudekraal principle applies such that invalid administrative acts may produce legal consequences until actually set aside by court order. A court interpreting another court's judgment must determine the manifest purpose of the order by reading the judgment as a whole, including its reasoning, in light of the relevant background facts and circumstances. Where a prior judgment has found procedural defects in the grant of mining rights but remitted the matter for reconsideration while not setting aside the decisions, the mining operations may continue pending the administrative reconsideration process. An applicant for an interim interdict must exhaust available alternative remedies that are satisfactory, including internal administrative remedies such as an application under section 96(2)(a) of the MPRDA for the Minister to suspend a mining right pending determination of an appeal. Courts should exercise judicial deference to administrative decision-makers who possess specialized technical expertise in polycentric, policy-laden matters such as whether mining operations should be suspended.

The court made several obiter observations: (1) That the best course of action to resolve ambiguity in Bam J's judgment would have been an application to Bam J under rule 42(1)(b) of the Uniform Rules for clarification, though the parties unfortunately declined this suggestion; (2) That the court was unable to conclusively determine whether delays in the appeal process were unreasonable, but noted that if mining continued beyond what Bam J contemplated as a reasonable timeframe for the appeal, this might fall outside the parameters of her just and equitable remedy; (3) That individual community members cannot be compelled to relocate without consent under IPILRA, and each person's position must be decided on their own preferences and merits; (4) That the decision whether to suspend a mining right is polycentric in nature and best determined by the statutorily ordained administrator (the Minister) who can benefit from expert departmental advice rather than by courts as a first instance decision; (5) That important constitutional rights are implicated in mining decisions, including the principle of legality, environmental rights, freedom of trade, rights to employment and income, just administrative action, and access to courts; (6) That even if interim interdict requirements are satisfied, courts retain overriding discretion to refuse relief, which can be influenced by public interest considerations including economic and employment impacts.

This case is significant for South African administrative law and mining law in several respects: (1) It clarifies that when a court declares administrative decisions invalid under section 172(1)(a) of the Constitution but explicitly states they are 'not set aside', this constitutes a just and equitable remedy under section 172(1)(b) that allows the decisions to continue operating in fact despite their legal invalidity; (2) It demonstrates the court's wide remedial discretion to fashion pragmatic solutions that balance legality concerns against practical realities such as continued economic activity and employment; (3) It reinforces the importance of the Oudekraal principle that invalid administrative acts may continue to produce legal consequences until set aside; (4) It emphasizes the requirement to exhaust internal administrative remedies, particularly in the mining context where section 96(2)(a) of the MPRDA provides for suspension applications to the Minister; (5) It underscores principles of judicial deference to administrative decision-makers with specialized expertise in technical, polycentric matters; (6) It illustrates the tension between environmental rights, procedural fairness, community rights under IPILRA, and economic considerations including employment and industrial supply chains; (7) It demonstrates that where serious procedural defects are found in granting mining rights, courts may preserve the mining operations while requiring proper compliance through an appeal process rather than immediately halting all activities.