Stern NO and Others v Minister of Mineral Resources (5762/2015) [2017] ZAECGHC 109 (17 October 2017)

Stern NO and Others v Minister of Mineral Resources (5762/2015) [2017] ZAECGHC 109 (17 October 2017)

The court found that the Minister of Mineral Resources lacked statutory authority to make the Petroleum Regulations after the repeal of section 107(1)(a) of the MPRDA, as environmental regulation powers had shifted to the Minister of Environmental Affairs under NEMA and the National Water Act. The Petroleum Regulations, dealing with environmental matters, were thus ultra vires. The process was also procedurally unfair, as Schedule 1 (prohibited substances) was not published for public comment, denying affected parties an opportunity to participate. The respondent's arguments based on other subsections of section 107 were rejected, as those did not confer the necessary regulatory...

Citation
[2017] ZAECGHC 109
Parties
Applicant: John Douglas Stern N.O.; Applicant: Arland James Ussher Stanley N.O.; Applicant: David Hamilton Stern N.O.; Applicant: Elizabeth Cathryn Stern N.O.; Applicant: Graaff-Reinet and District Agricultural Union; Applicant: Paul Stanley Merifield; Applicant: Graaff-Reinet Woolgrowers Association; Applicant: Graham Brian Harris; Applicant: Harold Garth Charles; Applicant: Cradock District Agricultural Union; Applicant: Daniel Jacobus Janse Van Rensburg; Applicant: David-Ettienne du Toit; Applicant: Buffelshoek Agricultural Union; Applicant: David Grant Short; Applicant: Jansenville Agricultural Association; Applicant: Franciscus Augustinus Fourie; Respondent: Minister of Mineral Resources
Court
Eastern Cape High Court, Grahamstown
Jurisdiction
South Africa
Judgment Date
17 October 2017
Case Number
5762/2015
Procedural Posture
Review Application / Judgment
Outcome
Application granted; the decision to make the Petroleum Regulations is reviewed and set aside.
Judges
G H Bloem
Legal Topics
Judicial Review of Regulations, Ministerial Powers, Hydraulic Fracturing, Procedural Fairness, Environmental Authorisation
Administrative Law Environmental Law Judicial Review of Regulations Ministerial Powers Hydraulic Fracturing Procedural Fairness Environmental Authorisation

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Parties

John Douglas Stern N.O.

Applicant

Arland James Ussher Stanley N.O.

Applicant

David Hamilton Stern N.O.

Applicant

Elizabeth Cathryn Stern N.O.

Applicant

Graaff-Reinet and District Agricultural Union

Applicant

Paul Stanley Merifield

Applicant

Graaff-Reinet Woolgrowers Association

Applicant

Graham Brian Harris

Applicant

Harold Garth Charles

Applicant

Cradock District Agricultural Union

Applicant

Daniel Jacobus Janse Van Rensburg

Applicant

David-Ettienne du Toit

Applicant

Buffelshoek Agricultural Union

Applicant

David Grant Short

Applicant

Jansenville Agricultural Association

Applicant

Franciscus Augustinus Fourie

Applicant

Minister of Mineral Resources

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the Minister of Mineral Resources was authorised to make the Petroleum Regulations under section 107 of the MPRDA after the repeal of section 107(1)(a).
  2. 2 Whether the making of the Petroleum Regulations contravened sections 44(1C) and 50A of NEMA and section 163A of the National Water Act.
  3. 3 Whether the process of making the Petroleum Regulations was procedurally fair, particularly regarding public participation on Schedule 1 substances.

Ratio Decidendi

The court found that the Minister of Mineral Resources lacked statutory authority to make the Petroleum Regulations after the repeal of section 107(1)(a) of the MPRDA, as environmental regulation powers had shifted to the Minister of Environmental Affairs under NEMA and the National Water Act. The Petroleum Regulations, dealing with environmental matters, were thus ultra vires. The process was also procedurally unfair, as Schedule 1 (prohibited substances) was not published for public comment, denying affected parties an opportunity to participate. The respondent's arguments based on other subsections of section 107 were rejected, as those did not confer the necessary regulatory...

Court Disposition

Application granted; the decision to make the Petroleum Regulations is reviewed and set aside.

Orders

  • The decision of the Minister of Mineral Resources to make the Regulations for Petroleum Exploration and Production, 2015 (published in Government Notice R 466 in Government Gazette 38855 dated 3 June 2015) is reviewed and set aside.
  • The matter is remitted to the respondent for reconsideration.