LOUISVALE IRRIGATION BOARD & another v minister of minerals and energy & others (unreported, Case No. 2090/2010, Northern Cape High Court, 19 December 2011)

Importance / This is a significant decision for notification and consultation in the mining context that expands upon the meaning of consultation established in the Constitutional Court’s Bengwenyama decision (see Bengwenyama Minerals v Genorah Resources 2011 (4) SA 113 (CC)). In this case, the owner of the land in question had been notified of the permit applications and was invited to submit comments. A lawful occupier on the property (incidentally, an entity also conducting sand mining activities) had not been notified or consulted. This case is a precedent for the rule that the lawful occupier must also be notified and consulted; that the onus to identify lawful occupiers and other affected parties rests with the mining proponents and the DMR; and that the notification and consultation must meet a number of substantive requirements, namely that: (i) the location on the property where mining activities will take place must be indicated; (ii) there must be detail of the steps to be taken to ensure that the planned mining activities do not interfere with or jeopardize existing activities; (iii) the route of any access roads over the property must be indicated; (iv) there should be an invitation to enter into negotiations, not merely an invitation to submit comments; and (v) the notification should enquire of the registered owner whether there are any lawful occupiers or affected parties.
What is also significant about this case is that the applicants asked for a punitive costs order against the DMR. Reading between the lines, this was granted on the basis that the DMR chose to prosecute a defence based on technicalities despite the clear guidance on consultation given by the Bengwenyama decision.
Parties / First Applicant: Louisvale Irrigation Board
Second Applicant: Kolskoot Beleggings 116 CC
First Respondent: Minister of Minerals and Energy
Second Respondent: Director-General, Department of Minerals and Energy
Third Respondent: Regional Manager, Minerals Regulation, Northern Cape Region
Fourth Respondent: Sizwe Plant Hire CC
Fifth Respondent: Jacobus Wouter van Zyl
Sixth Respondent: Yolanda Oberholster
Facts / Louisvale Irrigation Board (LIB) (a body constituted and registered in terms of the National Water Act 36 of 1998) was the legally registered owner of the property forming the subject matter of the application. Kolskoot CC was the lawful occupant of the party by virtue of a mining lease agreement it had concluded with the LIB. In 2009, after the conclusion of this lease agreement, the DMR granted mining permits to the fourth to sixth respondents to mine sand on the contested property.
The applicants contended that the requisite notice and consultation requirements had not been complied with. It was common cause that Kolskoot CC was not notified at all, but the DMR maintained that as the LIB did not disclose Kolskoot’s existence or occupancy of the property, it could not possibly have divined the interest that it had (para 6).
The respondents further maintained that the letters that were addressed to the LIB should have been construed as complying with the requisite notice requirements, as well as the requirement to consult (para 6). A sample of the contents of the letters (presented at para 7) indicated that the respondents notified the LIB of its application for a mining permit for river sand; notified the LIB of its “requirement” to submit written comments on the application to the DMR; and indicated that there would be a further opportunity to submit written comments on the Environmental Management Plan. The letter concluded with the invitation: “Please do not hesitate to contact me should you require any additional information”.
Relief Sought / The applicants instituted judicial review of the decisions to grant mining permits to the fourth, fifth and sixth respondents, and requested their cancellation.
Legal Issues & Judgment / Issue 1: Had there been compliance with the notice and consultation requirements specified in s 27(5)(b) and s 16(b)(b) of the MPRDA?
Judgment: Kgomo JP initially framed the issue in this case as being whether it was a statutory requirement that Kolskoot should have been consulted (para 3), but as the judgment unfolded it became clear that what was really at issue was the quality of the consultation with both the LIB and Kolskoot. That Kolskoot should have been consulted is clear from the court’s statement at para 8:
“The Legislature has in s 27(5)(b) of the Minerals Act (sic) employed the conjunctive ‘and’ to signify that not only ‘the land owner’ but also the ‘lawful occupier’ and in addition ‘any other affected parties’ must be ‘notified in writing and consulted with’. The implication therefore is that written notification which is not followed by proper consultation fall short of meeting the requirements envisaged in s 27(5)(b) and/or s 16(4)(b), as the case may be.”
Kgomo JP quoted extensively from two precedents to ground his decision that the consultation undertaken by the fourth, fifth and sixth respondents was not adequate, namely Maqoma v Sebe NO & another (1987 (1) SA 483 (Ck) at 490C-E in which it was stated that consultation “is a communication of ideas on a reciprocal basis”, and Bengwenyama Minerals v Genorah Resources 2011 (4) SA 113 (CC) paras 32–34 and 63–68.
At para 10 the judge laid out, point-by-point, the inadequacies of the letters. These included the following:
·  The notifications contained no particulars of where on the targeted property the applicants intended to mine sand.
·  The applicants did not supply any particulars of the steps to be taken to ensure that the mining activities would not jeopardize or interfere with LIB’s or Kolskoot’s mining activities.
·  The notification did not specify over which route the applicants intended to access the proposed mining site.
·  The notification did not contain any invitation to enter into negotiations.
·  The notifications could have enquired of LIB whether there were any lawful occupiers or other affected parties.
Kgomo J further stressed that the respondents (including the mineral authorities) had three opportunities to get the issue of notice and consultation with both LIB and Kolskoot right. These included an occasion when the mining lease agreement between LIB and Kolskoot was produced before the RMDEC that considered the applicants’ objection to the application; when an appeal process under s 96 of the MPRDA “kicked in”; and when the review proceedings were launched (para 11).
The judge dismissed all of the department’s arguments as “technicalities”, including the argument that the relief sought offended against the doctrine of the separation of powers (para 14).
Issue 2: Should costs against the department be awarded on an attorney and client scale?
Judgment: In considering whether costs on the attorney-client scale should be awarded against the DMR the judge noted that he had enquired of the department’s counsel why “in light of the clear decision, guidelines and finding in Bengwenyama Minerals (Pty) Ltd & others, which the department was aware of because it was party to the proceedings, the department still persisted in prosecuting its defence, or the lack thereof.” Kgomo J noted that counsel had avoided the question. “Perhaps that says it all”, he said (para 16). He concluded that the applicants had made out a valid case for the punitive costs award sought against the DMR (para 17).
Outcome / The permits granted to the fourth, fifth and sixth respondents were set aside and cancelled. The state authorities were handed a punitive costs order, while a normal costs order (on a party and party scale) was made against the remaining respondents.