Case summary written by Wade O’Connor and checked by Courtney Altmuner.
23 March 2021
On 9 November 2020, the High Court of South Africa, Gauteng Division, Pretoria (the “Court”) was presented with a matter regarding the rights of “interested and affected parties”, as contemplated in the Mineral and Petroleum Resources Development Act 28 of 2002 (the “Act”), in accessing a mining right application.
The primary dispute in this matter involved the right to mine various minerals, including titanium, on land belonging to the local Umgungundlovu community (the “community”), being the Applicants in the matter. The Applicants held informal rights to the land in question under the Interim Protection of Informal Land Rights Act 31 of 1996.
The matter arose as a result of the Applicants attempt to prevent the Fifth Respondent, an Australian mining company, Transworld Energy and Minerals Resources (“TEM”), from mining in the area. The Applicants were dependant on the land and TEM’s presence threatened their livelihood as the Applicants not only lived on the land but farmed the area.
The Applicants argued that they should be consulted about any proposed projects in the area and should be given authority to approve/refuse mining operations in the area. The Applicants further stated that even a majority vote, by the community, would be insufficient in approving mining projects on the land. However, it would be probable to gain approval for the project, provided that the negatively affected members agreed to be resettled and received sufficient compensation for the loss suffered because of the mining operations.
During 2015, the South African Government granted TEM mining rights over the land with the support of the Local Chief who had supposedly represented the Applicants. As a result of the mining rights being awarded, without the approval of the community members, conflict arose between the community.
Soon thereafter, the Applicants sent correspondence to TEM requesting a copy of the mining rights application (the “Application”). However, TEMS’s legal representatives responded by claiming that they were under no obligation to provide a copy of the Application and that same could be requested from the Department of Mineral Resources. In response, the Applicants stated their objection to the Application on the basis that it would disrupt their way of life and that TEM had not consulted the Applicants, as required in terms of section 10 of the Act. TEM’s legal representatives held their position and did not provide the requested Application.
Accordingly, the Applicants approached the Court seeking, inter alia, the following relief:
- declaring the Applicants as “interested and affected parties” in terms of the Act and therefore, the Applicants being entitled to receive of a copy of the Application as envisaged in sections 10(1) and 22(4) of the Act;
- compelling TEM, alternatively, the Department of Mineral Resources to furnish the Applicants with a copy of the Application within 5 days of the order; and
- prohibiting the South African Government, from awarding TEM the mining rights, until such time that the Application has been furnished to the Applicants and the required consultation, consultation and objection as provided in section 10(1) and 22(4) of the Act.
TEM provided the Applicants with a copy of the mining right application, but only after it had been issued and served. TEM however opposed the declaratory relief sought and argued that even though they had voluntarily provided a copy of the Application, the Act does not entitle “interested and affected parties” to a mining right application and that access to such information is regulated by the Promotion of Access to Information Act 2 of 2000 (“PAIA”).
In its response, the Applicants argued that upon the proper interpretation of sections 10 and 22 of the Act, the Applicants were automatically entitled to a copy of the Application upon request. Furthermore, the Applicants contended that an interpretation that is consistent with the objects of the Act and the Constitution of the Republic of South Africa, 1996, must be preferred over alternative interpretations. Lastly, the Applicants argued that the purpose of the consultation, provided in section 10 of the Act, is to provide sufficient details to the occupiers of the land to enable them to make an informed decision on the proposed mining activity.
Honourable Judge Makhubele agreed with the Applicants’ interpretation of the Act’s sections in finding that interested and affected parties should not have to go through the time-consuming and often unsatisfactory PAIA process in order to obtain a mining right application. Honourable Judge Makhubele further held that the Regional Manager of the Department of Mineral Resources must provide the mining right application documents to interested and affected parties on request. TEM was ordered to pay the costs of the legal proceedings.
The Court held that people who own land rights and are deemed “interested and affected parties” in terms of Mineral and Petroleum Resources Development Act 28 of 2002, are to be consulted and their consent required where an application for mining rights, pertaining to said land, is made.