24
IN THE NORTH GAUTENG HIGH COURT, PRETORIA
(REPUBLIC OF SOUTH AFRICA)
CASE NO. 56012/10
In the matter between:
MPHOHLELE JAMES SHIBURI First Applicant
ISAAC MAKGALAMELE Second Applicant
ROSELINASHIBURI Third Applicant
ELIZABETH MOSIMAKHWINANA Fourth Applicant
and
POTGIETERSRUSTPLATINUMS LIMITED First Respondent
THE MINISTER OF WATER AND
ENVIRONMENTAL AFFAIRS Second Respondent
THE MINISTER OF MINERAL RESOURCES Third Respondent
THE MINISTER OF RURAL DEVELOPMENT
AND LAND REFORM Fourth Respondent
THE MEC FOR ECONOMIC DEVELOPMENT,
ENVIRONMENT AND TOURISM, LIMPOPO Fifth Respondent
SEKURUWE (ASSOCIATION INCORPORATED
IN TERMS OF SECTION 21) Sixth Respondent
APPLICANTS’ HEADS OF ARGUMENT
Table of Contents
Introduction 2
Urgency and Locus Standi 5
Non-compliance with regulation 69(5) of the MPRDA Regulations 9
Non-compliance with NEMA and Notices R386 and R387 12
Non-compliance with NEMA and Notices R544 and R545 26
Relief sought 28
INTRODUCTION
1 The applicants are all members of the Sekuruwe community. The community resides in a village known as the Sekuruwe village, located on the farm Blinkwater 820 LR (‘Blinkwater’). Approximately 1500 adults live in the village. Many of the residents are migrant workers who return home only on weekends and holidays.[1] The villagers do not only reside on the farm; their cattle graze on the farm and they conduct various form of subsistence farming in the farm.[2]
2 The First Respondent is Potgietersrust Platinums Limited. It owns and operates the Mogalakwena Platinum Mine on properties adjacent to Blinkwater and holds a mining right permitting it do so.
3 The First Respondent has been granted a lease by the Minister of Rural Development and Land Reform over a substantial portion of the community’s land on Blinkwater. Pursuant to that lease, the First Respondent has been engaging in the construction of a tailings/slimes dam on Blinkwater which at present has a footprint of 280 hectares. It has also been pumping slimes and tailings (waste from its mining activities) into the dam. By the time of filing the answering affidavit it had pumped 1.6 million tons of waste into the dam on Blinkwater.[3]
4 Members of the Sekuruwe community have launched a review application seeking to challenge the Minister’s decision to grant the First Respondent the lease over the community’s land. That application is pending before this Court. The Minister and the present First Respondent are out of time with their answering affidavits in that matter.
5 The present urgent application, however, has a different primary focus. It concerns the question of whether, even assuming the validity of the lease agreement, the First Respondent has obtained the necessary authorisation in terms of the Mineral and Petroleum Resources Development Act 28 of 2002 (MPRDA) and National Environmental Management Act 107 of 1998 (NEMA) for the construction and operation of the tailings dam on Blinkwater.
6 As we explain in more detail blow, it is common cause between the parties that:
6.1 The First Respondent has not obtained the required written authorisation of the Minister of Mineral and Energy Affairs in terms of MPRDA Regulation 69(5) for the construction of the dam on the banks of the Blinkwater wetland.
6.2 The First Respondent has not obtained the required environmental authorisation in terms of NEMA for various listed activities contained in Government Notices R386 and R387.
6.3 The First Respondent has not obtained the required environmental authorisation in terms of NEMA for various listed activities contained in Government Notices R544 and R545.
7 In the circumstances, the Applicants seek appropriate relief from this Court interdicting the First Respondent from further constructing the tailings dam and pumping waste into the dam unless and until it has obtained the required authorisations.
8 Though the papers in his matter are relatively lengthy, the issues as they have crystallised in light of the exchange of papers are narrow. In these heads of argument we accordingly address the following issues in turn:
8.1 Urgency and locus standi
8.2 The First Respondent’s non-compliance with MPRDA Regulation 69(5);
8.3 The First Respondent’s non-compliance with NEMA read with Notices R386 and R387;
8.4 The First Respondent’s non-compliance with NEMA read with Notices R544 and R545; and
8.5 The relief sought
URGENCY AND LOCUS STANDI
Urgency
9 This application was launched on an urgent basis on 29 September 2010. Ultimately, following discussions between the parties and a meeting with the Deputy Judge President, a timetable was agreed for the filing of papers and the matter received a special allocation for 26 November 2010.
10 The First Respondent contends that “this application is not urgent”.[4] This is despite the fact that, on these papers, the following is common cause:
“The dumping of tailings in the dam on Blinkwater will have irreversible consequences if it is not stopped. The land will be buried under millions of tons of mine waste that will render it totally unusable for agricultural or any other purposes. The land will be totally sterilised.”[5]
and
“[T]he dumping of the tailings and other mining waste – unlike the building of the dam – would cause irreversible damage to the environment on Blinkwater (and wider) and would render the land unsuitable for a very, very long time for the cultivation of crops and grazing (which is what the community has used the applicable portion of Blinkwater for, for many years). It would make it impossible forever for us to reclaim our ancestral lands and provide for the subsistence of our families from the land.” [6]
11 We submit that on these facts alone, the application is self-evidently urgent.
12 All that remains then is the question of whether the urgency was self-created in that the Applicants ought to have approached this Court sooner. The Applicants cite various factors accounting for the timing of the present application, including that:
12.1 It had only recently become clear that that the First Respondent would start dumping tailings despite the pending review matter;[7]
12.2 The Applicants’ attempts to resolve the environmental issues via the Provincial Department of Environment;[8]
12.3 The inability of the applicants to obtain legal assistance due to a lack of resources;[9] and
12.4 The legal uncertainty concerning the relationship between the MPRDA and NEMA, which uncertainty was only resolved by the judgment of the Full Bench of Western Cape High Court in the Maccsand[10] case delivered on 20 August 2010;[11]
12.5 The attempts by the Applicants thereafter to resolve this matter by means of correspondence with the First Respondent.[12]
13 We submit that, in the circumstances, the Applicants have given a more than adequate explanation for the timing of this present application. In any event, and critically, the First Respondent has filed a full answering affidavit in the time period agreed between the parties. It does not suggest that it has suffered any prejudice whatsoever by virtue of the shortened time-periods.[13]
14 Finally, we point out that lack of urgency or self-created urgency is not a basis for an application to be dismissed. It if only ever a basis for an application to be struck from the roll, meaning it can then be re-enrolled in the ordinary course.[14] Doing so in this case – when full pleadings have been exchanged and when a special allocation has been granted – would not be in the interests of justice. It would simply mean that the matter has to be re-enrolled in three or four months time in front of a new judge. All the while, the First Respondent’s dumping of tailings would continue to occur.
15 The First Respondent’s point in limine therefore falls to be dismissed.
Locus standi
16 The Applicants approach this Court on various bases – including on their own behalf, on behalf of the Sekuruwe community and in the public interest.[15]
17 The First Respondent takes issue with the right of the Applicants to act on behalf of the Sekuruwe community.[16]
18 However, given that the First Respondent does not take issue with the Applicants’ right to approach this Court in their own interest and in the public interest, there is plainly the requisite locus standi.
THE FAILURE of THE FIRST RESPONDENT TO COMPLY WITH REGULATION 69 OF THE MPRDA REGULATIONS
19 On Blinkwater, there is a wetland which produces groundwater that follows the course of the river to the dam of the Sekuruwe community. The dam is an important source of water for livestock and human consumption. Water from the dam is also important for the Zionist and traditional healers healing the sick, particularly for illnesses that require water coming from the ground naturally.[17]
20 Regulation 69 of the MPRDA Regulations deals with the disposal of waste material. Regulation 69(5) provides:
“No sand dump or slimes dam shall be established on the bank of any stream, river, dam, pan, wetland or lake without written permission of the Minister [of Minerals and Energy] in consultation with the relevant Government department and upon such conditions as he or she may determine and as approved in the environmental management programme or environmental management plan, as the case may be.”[18]
21 In the founding papers, the applicants indicated that they were unaware that the Minister of Minerals and Energy had given any written permission under the MPRDA Regulations for the establishment of the slimes dam on the bank of the wetland on Blinkwater.[19]
22 In answer, the First Respondent does not deny that it has established the slimes dam on the bank of the wetland on Blinkwater. Nor does the First Respondent state or even suggest that the Minister of
Minerals and Energy has provided the required written permission. Instead it states simply:
“With regard to the allegations in paragraph 71, I respectfully refer to what is set out above in respect of the seasonal wetland on the farm Blinkwater.”[20]
23 The only other discussion of this issue in the answering affidavit is as follows:
“The wetland referred to is seasonal and will not be immediately impacted on by the Blinkwater Tailings Dam. The First Respondent is nevertheless in consultation with the relevant authorities in this regard. The allegations made in this regard are irrelevant, inaccurate and emotive. They are therefore denied.”
24 It is therefore plain that the First Respondent does not have the requisite written authorisation and that the First Respondent has provided no substantive answer to the Applicants’ complaint about non-compliance with Regulation 69(5). The regulation does not require approval from the Minister only where or when the wetland will “be impacted on” by the slimes dam. Rather, it is quite unambiguous in prohibiting the establishment of a slimes dam on the banks of any wetland without the written permission of the Minister.
25 The First Respondent’s establishment of the slimes dam is unlawful on this basis alone. Indeed, the First Respondent has committed a criminal offence in this regard given that section 98(a)(viii) of the MPRDA provides that a person is a guilty of an offence if he fails to comply with the provisions of “this Act” and “this Act” is turn defined as including the MPRDA regulations.
26 The First Respondent cannot be permitted to continue disposing of its waste in the slimes dam on Blinkwater when that slimes dam was unlawfully constructed. The Applicants are therefore entitled to an order interdicting the First Respondent from doing so unless and until it has obtained the necessary written permission in terms of Regulation 69(5) of the MPRDA Regulations.
27 On this basis alone then, the application ought to succeed.
THE FAILURE of THE FIRST RESPONDENT TO COMPLY WITH NEMA READ WITH NOTICES R386 AND R387
NEMA’s requirement of environmental authorisation
28 NEMA empowers the Minister of Environmental Affairs and Tourism and every MEC responsible for environmental affairs to identify activities which may not commence without environmental authorisation. In this regard s 24(2) of NEMA provides:
‘The Minister, and every MEC with the concurrence of the Minister, may identify –
(a) activities which may not commence without environmental authorisation from the competent authority”
29 In terms of s24D, the listed activities must be published:
‘(1) The Minister or MEC concerned, as the case may be, must publish in the relevant Gazette a notice containing a list of-
(a) activities or areas identified in terms of section 24 (2); and
(b) competent authorities identified in terms of section 24C.
(2) The notice referred to in subsection (1) must specify the date on which the list is to come into effect.”
30 In terms of s 24F(1) of NEMA, no person may commence a listed activity without an environmental authorisation and under s24F(2) commencement of a listed activity without an environmental authorisation is an offence. The relevant parts of s 24F provide that:
“(1) Notwithstanding any other Act, no person may-
(a) commence an activity listed or specified in terms of section 24(2)(a) or (b) unless the competent authority or the Minister of Minerals and Energy, as the case may be, has granted an environmental authorisation for the activity; or
(b) …
(2) It is an offence for any person to fail to comply with or to contravene-
(a) subsection (1)(a);”
31 The NEMA Environmental Impact Assessment Regulations in force when the construction of the Dam began set out a step-by-step process that had to be followed when an application for an environmental authorisation is made and considered.
31.1 There were different kinds of assessments, namely a basic assessment, scoping and an environmental impact assessment.
31.2 Even for a basic assessment, there were certain minimum steps, such as a public participation process as set out in regulation 56 (regulation 22(a)) and other procedural requirements set out in regulation 22, as well as the requirements for the report on the basic assessment set out in regulation 23.
31.3 The competent authority (i.e. the decision-maker) had to grant or refuse the application on the basis of the basic assessment report alone (regulation 26(1)). However, if the competent authority was unable to decide the application on the basic assessment report alone, the competent authority had to request additional information, reports or the consideration of further alternatives.