Mining and Environmental Justice Community Network of South Africa and Others v Minister of Environmental Affairs and Others

Eight environmental, community and human rights organisations (applicants) sought to review decisions by the Minister of Environmental Affairs (20 August 2016) and the Minister of Mineral Resources (21 November 2016) granting Atha-Africa Ventures (Pty) Ltd permission to conduct coal mining activities in the Mabola Protected Environment (MPE). The MPE was declared on 22 January 2014 by the MEC for Mpumalanga and includes wetlands and grasslands classified as "Irreplaceable Critical Biodiversity Areas". The area forms part of the Wakkerstroom/Luneburg Grasslands listed as threatened ecosystems in 2011 under NEMBA. Atha, a South African subsidiary of an Indian group with BEE partners connected to the Zuma family, sought permission under section 48(1)(b) of NEMPAA on 3 May 2016. The applicants learned of the ministerial permissions only by chance in January 2017 after making PAIA requests for information. They were never afforded an opportunity to be heard before the decisions were made, despite having contested all preceding authorisations required for mining activities.

• Interpretation of section 48(1)(b) of the National Environmental Management: Protected Areas Act 57 of 2003 (NEMPAA)
• Whether mining permission in protected environments should only be granted in exceptional circumstances
• Application of sections 3 and 4 of the Promotion of Administrative Justice Act 3 of 2000 (PAJA) and justification for departure therefrom
• Nature and scope of Ministers' discretions and distinctive duties under NEMPAA
• Requirement for transparency in environmental decision-making
• Whether Ministers could grant permission before conclusion of statutory appeals regarding other required authorisations
• Whether Ministers could grant permission in the absence of a final management plan for the protected environment
• Whether Ministers improperly relied on other functionaries' decisions without independent application of mind
• Whether relevant considerations were taken into account and irrelevant considerations excluded

The decisions of both Ministers granting permission under section 48(1)(b) of NEMPAA were reviewed and set aside. The application was remitted to the Ministers for reconsideration with directives to: (1) comply with PAJA sections 3 and 4; (2) take into account local community interests and NEMA section 2 principles; (3) defer decision until completion of statutory appeals regarding the environmental management programme and water use licence; (4) not grant permission until a management plan for the MPE has been approved and to consider its contents. A saving provision allowed any party to apply for variation if the MEC excluded the mining area from the MPE. The First, Second and Fifth Respondents were ordered to pay the applicants' costs jointly and severally on an attorney and client scale, including costs of two counsel. An earlier application by the MEC for postponement (after publishing notice of intention to exclude the mining area from the MPE days before the hearing) was dismissed with punitive costs.

Section 48(1)(b) of NEMPAA must be purposively interpreted to require that: (1) permission to mine in a protected environment is an additional requirement beyond all other statutory authorisations; (2) Ministers must act as custodians/trustees of protected environments applying strict scrutiny; (3) Ministers must take into account local community interests and NEMA section 2 environmental principles; (4) Ministers have distinctive duties arising from NEMPAA and cannot simply rely on decisions of other functionaries under different legislation - they must independently apply their minds within the purpose and ambit of NEMPAA. Each functionary operates within their own enabling statutory provisions and satisfaction of requirements in one act does not equate to satisfaction of similar requirements in another act, particularly when adjudicated by different functionaries (applying Fuel Retailers). Departure from PAJA sections 3 and 4 procedural fairness requirements must be justified by consideration of the specific factors listed in sections 3(4)(b) and 4(4)(b), which cannot be done retrospectively in answering affidavits. Ministers cannot grant permission under section 48(1)(b) before completion of "wide appeals" regarding other required authorisations, as such appeals may introduce new evidence and change the nature or conditions of underlying authorisations. An approved management plan for the protected environment must be in place before Ministers can properly exercise their discretion under section 48.

The court noted that "most people would agree, when thinking of the tomorrows of unborn people that it is a present moral duty to avoid causing harm to the environment" (citing Du Plessis on public trusteeship and future generations). The court expressed concern about the lack of transparency in environmental decision-making where politically connected parties are involved, noting that "ethical environmental governance and behaviour is enhanced simply by exposing it to the glare of public scrutiny". The court stated that while not constituting a separate substantive ground of review beyond its inclusion via section 48(4), a "risk-averse and cautious approach" must be applied when dealing with sensitive, vulnerable or stressed ecosystems such as wetlands (per NEMA section 2 principles). The court commented that courts must be vigilant not to overstep separation of powers by being over-prescriptive to administrative decision-makers, which is why it declined to make specific directions regarding rehabilitation provisions. On the issue of "exceptional circumstances", the court found it unnecessary to read these words into section 48, as purposive interpretation achieves the legislative intent without that specific wording, though it may set the bar higher than intended. The court noted the case was a "textbook case of how case managed litigation should function". The court found the MEC's last-minute notice to exclude the mining area from the MPE, published days before the hearing without informing his legal team, to have "unfortunate" timing "to say the least".

This is the first judicial interpretation of section 48 of NEMPAA, establishing important precedent on the nature of ministerial permissions for mining in protected environments. The judgment clarifies that such permissions are not mere rubber-stamps but require independent, strict scrutiny by Ministers acting as environmental trustees. It establishes that NEMPAA has supremacy over conflicting legislation regarding protected areas (per section 7) and that satisfaction of requirements under one statute does not satisfy similar requirements under another when different functionaries are involved (applying Fuel Retailers principles). The case reinforces that procedural fairness under PAJA cannot be bypassed without proper justification, and that environmental decision-making must be transparent, particularly where politically connected parties are involved. It establishes that Ministers must await conclusion of statutory appeals before granting section 48 permissions and must have an approved management plan before them. The judgment is significant for mainstreaming biodiversity considerations in mining decisions and for protecting wetlands and threatened ecosystems. It demonstrates robust judicial review of environmental administrative action and reinforces constitutional environmental rights under section 24 of the Constitution.