Mineral Sands Resources (Pty) Ltd v Magistrate for the District of Vredendal, Mr CS Kroutz N.O. and Others

Mineral Sands Resources (MSR) operated the Tormin sand mine near Lutzville. MSR obtained a mining right in 2008 with an approved Mining EMP, and in 2012 received environmental authorisation from the Western Cape government (DPWC) with a NEMA EMP. Mining began in 2013. MSR made various changes to its operations including relocating primary beach concentrators from the beach to the secondary concentrator plant site, installing pipelines for tailings, and expanding the SCP site. On 8 December 2014, the One Environmental System came into force, making the Mining Minister the competent authority for environmental authorisations relating to mining and creating the position of mining inspectors. The DMR approved an amended Mining EMP on 14 April 2015. Following complaints, national inspector Ms Meissenheimer applied for and obtained a search warrant on 28 September 2016 from the Magistrate. The warrant was executed on 29 September 2016 by a large contingent of officials. MSR challenged the validity of the warrant on multiple grounds including that national inspectors lacked mandate to investigate mining-related environmental contraventions after 8 December 2014.

• Whether national environmental inspectors retained jurisdiction to monitor and enforce environmental legislation relating to mining after the introduction of the One Environmental System on 8 December 2014, or whether such jurisdiction was exclusive to mining inspectors appointed under s 31BB of NEMA
• Whether the applicant for a search warrant complied with the duty of full and fair disclosure in ex parte proceedings, particularly regarding the jurisdictional dispute and the mandate of inspectors
• Whether the evidence presented to the Magistrate established reasonable grounds for suspecting the commission of the five alleged offences
• Whether the search warrant was sufficiently intelligible as required by the Criminal Procedure Act
• Whether a preservation order should be granted in respect of seized material where a search warrant is set aside

The search warrant issued on 28 September 2016 was reviewed, set aside and declared invalid. The second, fifth, sixth and seventh respondents were ordered to deliver copies of all seized material to the registrar within two weeks, together with a detailed index, to be kept under seal pending criminal proceedings or a decision not to prosecute. The respondents were ordered to destroy all other copies and deliver one copy with index to the applicant's attorneys. The respondents were ordered to pay the applicant's costs, including costs of two counsel.

1. Sections 31D(4)-(9) of NEMA establish that mining inspectors appointed under s 31BB have exclusive jurisdiction to monitor and enforce environmental legislation relating to mining activities for which the Mining Minister is the competent authority, subject to specific exceptions requiring the Environment Minister's intervention with the Mining Minister's concurrence. National environmental inspectors lack mandate to investigate such matters unless designated pursuant to the exceptional procedures in ss 31D(4)-(9). 2. An applicant for a search warrant in ex parte proceedings must disclose all material facts and legal issues which might influence the judicial officer's decision, including substantive legal challenges previously raised by the target of investigation, even if the applicant does not accept their merit. The duty extends to drawing attention to relevant statutory provisions and authorities. 3. Where a search warrant is set aside as unlawful, the ordinary rule is that seized material should be preserved so the trial court can exercise its discretion under s 35(5) of the Constitution regarding admissibility, unless special circumstances such as invasion of intimate privacy or egregious conduct in execution justify departure from this rule.

The court expressed doubt, without finally deciding, whether the mandate of mining inspectors extends to investigating offences under s 49A(1)(e) of NEMA (unlawfully causing significant environmental degradation) as distinct from contraventions relating to listed activities requiring environmental authorisation. The court suggested that while s 38A of the Mining Act makes the Mining Minister the responsible authority for implementing NEMA's environmental provisions in mining areas, the precise scope of this responsibility is debatable and arguments exist on both sides. The court also expressed reservations about the correctness of the parties' shared assumption that transitional provisions in s 12(7) of Act 62 of 2008 permitted the DMR to approve amendments to Mining EMPs after the repeal of s 39 of the Mining Act, noting that s 12(7) appears to apply only to applications for mining rights or permits, not to amendments of EMPs. Rogers J observed that the use of such a large contingent (26 officials including 16 police officers) to execute the warrant was 'rather heavy-handed' though not unlawful. He noted that in respect of the expanded footprint charge, there appeared little justification for resorting to a search warrant given that the expansion had been openly disclosed and approved, though this was not a ground raised by the applicant.

This case provides important guidance on the interpretation and operation of the One Environmental System introduced in December 2014, which aimed to establish a single environmental regulatory framework for mining activities. The judgment clarifies the respective mandates of national environmental inspectors versus mining inspectors appointed under NEMA, holding that mining inspectors have exclusive jurisdiction over environmental compliance monitoring and enforcement in relation to mining activities, subject to specific exceptions requiring consultation and concurrence between the Environment Minister and Mining Minister. The case reinforces strict duties of disclosure in ex parte applications for search warrants, particularly where complex jurisdictional questions are in dispute. It emphasizes that investigators must disclose not only facts but also substantial legal challenges raised by the target of investigation. The judgment also contributes to jurisprudence on preservation orders when search warrants are set aside, applying the 'ordinary rule' from Thint that seized material should generally be preserved for possible admission at trial under s 35(5) of the Constitution, absent special circumstances such as invasion of intimate privacy or egregious conduct.