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Bulletin

Meaningful Consultation – High Court declares that interested and affected parties are entitled to be furnished with a copy of mining right application upon request

Fasken
Reading Time 7 minute read
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On 14 September 2020, the High Court of South Africa (Gauteng Division, Pretoria), in the matter between Duduzile Baleni & Others v Regional Manager: Eastern Cape Department of Mineral Resources & Others (CALS intervening) [Case No.96628/2015], ordered that interested and affected parties as contemplated by the Mineral and Petroleum Resources Development Act No. 28 of 2002 ("MPRDA"), are entitled by sections 10(1) and 22(4) of the MPRDA, on request to the relevant Regional Manager of the Department of Mineral Resources [and Energy] ("DMRE"), to be furnished with a copy of an application for a mining right as contemplated in section 22 of the MPRDA, subject to the right of the mining right applicant and/or the DMRE to redact financially sensitive aspects of the mining right application.

In terms of section 10(1) of the MPRDA, upon accepting an application for a mining right (or prospecting right), the Regional Manager must notify interested and affected parties of the application and call upon them to submit comments in respect of the application, within a period of 30 days from the date of the publication of the notice calling on them (interested and affected parties) to submit comments.  Section 20(4) of the MPRDA provides that the Regional Manager must, on acceptance of the mining right application, notify the mining right applicant to submit an environmental report as required in terms of National Environmental Management Act, 1998 within a period of 180 days from the date of notification and to consult with the landowner, lawful occupier and any interested and affected party and include in the report the results of such consultation held in the prescribed manner.

Facts of the case

The applicants in the matter were the iNkosana and head of the Umgungundlovu community council, which was established in terms of customary law and members of the Umgungundlovu community.

Transworld Energy and Mineral Resources (SA) (Pty) Ltd ("TEM") the fifth respondent in the matter and the mining right applicant, applied for a mining right on 3 March 2015 over land which the applicants reside and work in.  The applicants wrote to the Regional Manager seeking to ascertain whether the mining right application was filed and requesting a copy of the mining right application. The Regional Manager directed the applicants to request a copy of the application directly from TEM, or by making a request to the DMRE in terms of the provisions of the Promotion of Access to Information Act, 2 of 2000 ("PAIA").  For months, the applicants wrote to TEM requesting a copy of the mining right application, which request was refused by TEM.

The applicants then instituted this Court application to compel disclosure of the mining right application documents. Subsequent to the institution of the Court application, TEM provided the applicants with a copy of the mining right application.

The primary issue in this matter was whether interested and affected parties in an application for a mining right are entitled to a copy of the mining right application in terms of sections 10 and 22(4) of the MPRDA.

TEM did not dispute that the fact that the applicants must be given access to the documents, but argued that the process by which they must get them is not provided for in the MPRDA. TEM contended that the legislation that gave effect to section 32 of the Constitution (right to access to information) is PAIA and the applicants should follow the procedures prescribed therein. It contended further that the applicants must utilise the procedures in terms of PAIA, and if the complaint or problem [with regard to access to information] is about delays, section 15 of PAIA, makes provision for automatic access of documents.

The applicants contended that:

  • on the proper interpretation of sections 10 and 22(4) of the MPRDA, these sections mean that interested and affected parties or persons should obtain a copy of the mining right application automatically, upon request from the Regional Manager to enable them to have meaningful consultations with TEM (the mining right applicant);
  • on whether a request through PAIA is a requirement, the MPRDA sets out timelines for the exercise of the communities’ rights [the rights of interested and affected persons], which are truncated such that if they were required to make an application to access the application in terms of PAIA, they would not be able to meaningfully exercise their rights to consultation as the PAIA application process, including the internal appeal process, takes beyond 30 days to finalise thereby not making it possible for interested and affected persons to prepare and submit an objection to the mining right application within the 30 day period prescribed by the MPRDA;
  • the Department updates the PAIA manual (which is an internal document) annually and there is no guarantee that the information interested and affected persons are automatically entitled to in terms of the PAIA manual, will be the same in years to come. The list of new documents in the PAIA manual is not exhaustive and it does not include everything that the applicants would want from the mining right applicant. For example, documents relating to shareholding and ownership of the mining right are not included in the list of automatic access. Furthermore, internal documents cannot be used to interpret the MPRDA.

Decision

The Court held that the right of interested and affected parties to raise amongst others, environmental objections as the basis for objecting to an application for a mining right and their entitlement to be heard before a decision is made and the principle of sustainable development has previously been affirmed through case law. The Court held further that the matter is not about the deficiencies in the PAIA manual of the DMRE, except for the complaint that the process is lengthy and following it may result in a failure to comment or object timeously; further that certain of the documents required by interested and affected persons in order to exercise their rights under the MPRDA meaningfully, may not form part of the category of information which they are automatically entitled to have access to in terms of PAIA.

Moreover, the Court held that it is clear from a reading of all the relevant statutory provisions that persons in the position of the applicants cannot be treated like ordinary members of the public. In terms of the MPRDA, every South African is a beneficial owner of all minerals and have a right to access information for many reasons. However, the information that is in the mining right application is required for a specific purpose, by persons or group of persons in the position of the applicants. This purpose, is what makes the request for the information during the application process different from for example when it is required to determine whether, post facto the process, certain requirements have been met or to collate statistics with a view to influence policy changes.

The Court further held that meaningful consultation [as contemplated in the MPRDA] entails a discussion of ideas on equal footing, considering the advantages and disadvantages of each course and making concessions where necessary and that in terms of the definition of ‘owner’, they [the applicants] are in an equal position with the State. In fact, their inputs to the mining application are intended to inform the Minister whether the application meets all the prescribed requirements in terms of the objects of the MPRDA and the necessary consultation processes.

Accordingly, the Court held that the manner in which the applicants [as occupiers of the land in respect of which the mining right is sought] obtain a copy of the mining right should not be restricted to the request processes in terms of PAIA (DMRE manual) because they are the persons who should deal directly with the issues that will ultimately determine the fate of the mining right application.

The Court accordingly declared that interested and affected persons as contemplated in the MPRDA are entitled by sections 10(1) and 22(4) of the MPRDA, on request to the relevant Regional Manager of the DMRE, to be furnished with a copy of the application for a mining right as contemplated in section 22 of the MPRDA, subject to the right of the applicant and/or the DMRE to redact financially sensitive aspects of the application.

Conclusion

In light of the above, Regional Managers of the DMRE must provide copies of the mining right application documents to interested and affected parties on request to enable meaningful consultation.

It is worth noting that the Amendments to the Mineral and Petroleum Resources Regulations published on 27 March 2020 by the Minister for the Department of Mineral Resources and Energy ("Amendment Regulations"), require applicants when consulting with interest and affected persons to amongst others avail all the information pertaining to the proposed activities enabling interested and affected parties to make an informed decision regarding the impact of the proposed activities.  Although the judgment does not refer to the Amendment Regulations, it appears to be in line with the definition of ‘meaningful consultation’ as contemplated in the Amendment Regulations.

While this is not contemplated in the judgment, by implication, interested and affected persons are also entitled to request copies of prospecting right applications. 

This bulletin was prepared by partner Godfrey Malesa, senior associate Mmaphuti Morolong and candidate attorney Thulisile Cingo.

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