Vhembe Mineral Resources Stakeholders Forum and Others v MEC, Department of Economic Development, Environment and Tourism (Limpopo Provincial Government) and Others (78690/14) [2015] ZAGPPHC 1043 (8 December 2015)

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

CASE NO: 78690/14

8/12/2015

NOT REPORTABLE

NOT OF INTEREST TO OTHER JUDGES

In the matter between:

VHEMBE MINERAL RESOURCES

STAKEHOLDERS FORUM First Applicant

MAKHADO ACTION GROUP Second Applicant

MUDIMELE COMMUNITY Third

Applicant

and

MEC: DEPARTMENT OF ECONOMIC DEVELOPMENT, ENVIRONMENT AND TOURISM (LIMPOPO PROVINCIAL

GOVERNMENT First Respondent

COAL OF AFRICA LIMITED Second Respondent

REGIONAL MANAGER: DEPARTMENT OF

MINERAL RESOURCES, LIMPOPO GOVERNMENT Third Respondent

MINISTER OF MINERAL RESOURCES,

DEPARTMENT OF ENVIRONMENTAL AFFAIRS

OF

THE REPUBLIC OF SOUTH AFRICA Fifth

Respondent

HEAD: DEPARTMENT OF ECONOMIC

DEVELOPMENT

ENVIRONMENT AND TOURISM (LIMPOPO

PROVINCIAL GOVERNMENT) Sixth

Respondent

SENIOR GENERAL MANAGER: ENVIRONMENT

AND TOURISM

(LIMPOPO PROVINCIAL GOVERNMENT) Seventh Respondent

JUDGMENT

Tuchten J:

1. This case is procedurally complex. It raises potentially difficult questions of law as well but those need not be dealt with in this judgment. Even the heading to this judgment requires an explanation. The seventh respondent (the SGM), who had not previously been a party, was joined pursuant to an order to be granted (ultimately without opposition) by me in the present proceedings. At the hearing before me, only the applicants and the second respondent (CoAL) were represented. The government respondents were not represented.

2. CoAL is an Australian company, active in the coal mining industry. CoAL and certain of its subsidiaries applied for mining rights over an area of about 120 ha north of the Soutpansberg in Limpopo. CoAL's application contemplated four different mining projects within this area. I shall call these projects collectively the Makhado Colliery Project (MSP). In addition, Limpopo Coal Company (Pty) Limited holds a mining right in relation to an area five kilometres from a national park. Operations at the mine in this latter area (Vele) were suspended in 2013 when CoAL announced that Vele would not be reopened unless coal from other sources (notably those I earlier mentioned) could be blended with Vele coal to raise its average standard.

3. The first applicant is an association of persons who would be affected by the MSP. The second applicant is also an association of persons interested in and affected by the MSP. The third applicant (the Community) is said to comprise members of an indigenous tribe who live on a certain farm in the Vhembe district in Limpopo. Questions were referred to before me regarding the exact persons who support the litigation upon which the applicants have embarked and can thus be regarded for present purposes as members of the Community but the resolution of those questions is not required for present purposes.

4. The process of mining coal is potentially beneficial to the communities affected by such operations because it can provide economic opportunities. It is also potentially harmful because coal mining can degrade the environment. The mining of coal, like other minerals, can only lawfully take place if a complex series of administrative permissions is obtained. At the time relevant to this judgment, these included permissions under the National Environmental Management Act, 107 of 1998 (NEMA) and the Mineral and Petroleum Resources Development Act, 28 of 2002 (MPRDA). Depending on the nature of the specific activity for which permission is sought, other permissions may be necessary as well. For example, where water is involved, a water use license will be required.

5. Where the mining of coal is concerned, one such permission is generally not enough. All of those required by law have to be obtained before the actual mining of coal can take place. One of such permissions iswhat was described in the papers as an Environmental Authorisation (EA).

6. Under s 24 of NEMA, certain activities may not be undertaken unless an EA has been obtained under NEMA. An EA is necessary before the activity in question may be undertaken but the fact that an EA has been obtained may not be sufficient to render the undertaking of the activity lawful. Other permissions may be necessary as well. All that can be said is that an important impediment to the actual goal of mining coal is removed by the obtaining of an EA.

7. The process by which an EA might at the time be obtained was set out in the Environmental Impact Assessment Regulations made pursuant to NEMA and published under Government Notice R543 in Government Gazette 33306 of 18 June 2010 ("the Regulations").

8. By circular letter dated 9 September 2013, CoAL's public participation manager reported to registered interested and affected parties that "Limpopo Economic Development, Environment and Tourism LEDET" had granted CoAL an EA for the MCP on 30 August 2013. The present applicants were aggrieved by the decision to grant the EA and appealed to "Limpopo Economic Development, Environment and Tourism" in terms of reg 60 of the Regulations.

9. But the appeal was dismissed on the grounds that it was brought out of time. At the hearing before me, it was common cause between the applicants and CoAL that the appeal should not have been dismissed but should have been decided on its merits. Apparently, the LEDET fax machine, to which the appeal documents initially were sent, was out of order at the relevant time. The appeal procedure is rather complex. But I need not decide any questions arising from the form or the manner in which the appeal was submitted.

10. The applicants decided to take legal proceedings to enforce their perceived rights. The case started with a notice of motion dated 24 October 2014. In Part A of the notice of motion, the applicants sought interdict relief in the normal course, directed at preventing CoAL from commencing any of the activities identified in the EA. This relief was expressed in the notice of motion to operate, firstly, pending certain review proceedings described in Part B of the notice of motion. Secondly, the Part A relief was sought pending the carrying out and finalisation by the second respondent (CoAL) of a

Regional Strategic Environmental Impact Assessment in respect of the cumulative effects of all [CoAL's] proposed mining projects upon pre-existing commercial activities in the Applicants' geographical area of interest and the issue of any authorisations consequent upon this process.

11. In prayer 2 of Part B of the notice of motion, the applicants sought relief reviewing and setting aside the decision of the first respondent, ie the MEC, "... contained in a Record of Decision" dated 30 August 2013 ... ." It is clear that the decision identified in this prayer was the decision to grant the EA. There was also prayers in Part B for "confirmation of the order granted in Part A" (whatever that may mean) and for orders remitting the matter to the MEC for reconsideration and correction in accordance with any recommendations made by the court as well as orders directed at eliminating or remedying pollution and degradation. I do not think those prayers are relevant to the present enquiry.

12. But the functionary who took the decision to grant the EA was not the MEC but the SGM, who at the time the interdict was sought was not a party to the action and was not identified as the decision maker.

13. A more serious problem arose from the way the main founding affidavit supporting the relief in both Parts of the notice of motion was drafted. The relief which the deponent said in the affidavit he contemplated was not that identified in prayer 2 of Part B of the notice of motion but was said to be a review of the decision to dismiss the appeal.

14. The application brought by notice of motion dated 24 October 2014 was served on CoAL at its registered office in Bryanston. But CoAL had moved offices and neglected to change its registered office. So while the application was duly served on CoAL, it did not come to the minds of those responsible for CoAL's administration. The notice of motion gave notice that if no notice of intention to oppose were given, the "application would be made" on 9 December 2014. On that date the application came

before Strijdom AJ in the unopposed motion court. The learned acting judge on that date made an order granting the interdict in Part A. The review was left pending for reasons not ventilated before me.

15. The matter dragged on somewhat. Counsel for CoAL submitted that once the applicants had obtained their interdict, they were content to allow the case to drag. In particular CoAL complains that the applicants did not proactively prod the government respondents into providing the record which, under rule 53(1)(b), had to be provided within 15 days of receipt of the notice of motion. Even if this submission is correct, CoAL also had remedies in this regard which it did not immediately pursue.

16. The applicants realised that their initial application for review was procedurally defective. By notice of motion dated 18 February 2015, they applied to amend their notice of motion dated 24 October 2014 by identifying in prayer 2 in Part B the true decision maker, ie the SGM, and joining the SGM as seventh respondent. In addition, they sought to amend the earlier notice of motion by adding to the initial substantive relief claimed (ie to set aside the EA) an additional alternative prayer, to set aside the decision dismissing the applicants' administrative appeal against the decision to grant the EA which they had brought under the Environmental Impact Assessment Regulations. There was also a prayer for the admission of a supplementary founding affidavit which was not contentious.

17. Although the applications to amend and join were initially opposed, that opposition was withdrawn shortly before the case was called before me on 3 December 2015. What was left was a counter­ application brought by CoAL by notice of motion dated March 2015 to set aside the interim interdict granted in the unopposed motion court on 9 December 2015. In the founding affidavit supporting its counter-application, CoAL made it clear that it was not responding substantively to what it termed an irregular application by the applicants.

18. I must say that Ifind this stance rather glib. There was no reason why CoAL should not have traversed the allegations of fact made in the founding affidavit in the application for an interdict and for review. But the result is that the allegations to establish a prima facie right and a balance of convenience in favour of the applicants have been left untraversed.

19. The first part of the case as made by CoAL in its application to set aside the interdict and as advanced by counsel in argument is that it was incompetent for the court to have granted an interdict pending the review of the decision to grant the EA when in the founding affidavit delivered in support of that application the applicants identified the relevant Part B relief as the review of the decision to dismiss the appeal.

20. I think that this part of the case must be decided against CoAL. A founding affidavit in motion proceedings functions botti as pleading and evidence and must of course be read with the notice of motion. While the focus of the evidence in the founding affidavit was the perceived imperfections in the administrative appeal proceeding, considerable portions of the founding affidavit were directed at demonstrating that the appeal should have succeeded because the decision to grant the EA was flawed.

21. Strijdom AJ thus had before him a Part B prayer for review relief directed at setting aside the EA and evidence on the strength of which a court might in due course come to the conclusion that the Part B relief as originally conceived should be granted. The case for the applicants was presented in an ambivalent manner in the founding affidavit read with the notice of motion. I am by no means convinced that, all other things being equal, a court in those circumstances could not in the proper exercise of its discretion grant interim interdict relief pending the adjudication of prayer 2 in due course if that was what was asked for in court. At the heart of the case, constitutional rights are implicated: the applicants' rights to an environment that is not harmful, polluted or degraded. On the other hand is CoAL's right to proceed with its efforts to secure the necessary permissions ultimately to enable it to begin mining coal.

22. But this is an application for reconsideration of the interim order. A court is always entitled to reconsider its earlier interim order. It has authoritatively been stated that such an order may be varied or rescinded for sufficient cause. Atkin v Bates 2011 6 SA 231 SCA para 12. As this is a case in which the applicants seek to protect constitutional rights, I venture to suggest that the test

would be whether the interests of justice and equity required the variation or rescission of the original order. Compare s 172(1)(b) of the Constitution.

23. Even if in December 2014 the court ought in the proper exercise of its discretion to have dismissed the application for an interim interdict or to have postponed the case so that the applicants could remedy the defects in their case as presented (on which Iam not convinced), Ido not think that I should approach the matter as at that date. I think the proper question, consistent with justice and equity, is whether today a rescission or variation would be appropriate. The case for relief in due course to set aside the EA stands uncontradicted. CoAL appears to accept that the appeal ought to have been heard on its merits and that its dismissal for late prosecution was unlawful. The defects in the applicants' case with which I have dealt have been cured. Counsel for CoAL accepted during argument that it could not at this stage be said that the applicants did not have prospects of success in the review in due course. The concession was correctly made because CoAL elected not to join issue with the applicants on this issue.

24. In regard to balance of convenience, counsel for CoAL submitted that in relation to the acts specifically prohibited by the interdict, other permissions might well be required before the acts could actually lawfully be performed and that there was no threat of imminent harm. But there are, as I see it, two reasons why this argument should not prevail. Firstly, CoAL might complete the necessary suite of permissions before the review is heard. Secondly, in response to a question from me in open court, CoAL declined to give an undertaking not to proceed to carry out the activities pending the determination of the review.

25. I have mentioned that counsel for CoAL criticised the applicants for failing to prosecute its review vigorously, in particular pointing to the facts that the government respondents have not yet furnished the record and that the applicants have not taken steps to compel the government respondents to do so. But this was not ventilated on the papers and Ithink it would be unfair to the applicants to hold against them the non-production of the record by respondents over whom the applicants have neither control nor influence.

26. Because the interdict is an interim order and thus not susceptible to appeal, it will always be open to CoAL in the future on good cause shown to vary the interdict or even to have it set aside. Should CoAL be able to show that it is no longer just nor equitable to prevent it from carrying out a specific activity which is hit by the interdict, it will be entitled in principle to approach a court for appropriate relief.

27. I therefore decline to set side the interdict on the ground described. The next question with which I must deal is what, if anything, Ishould do about the provision of the interdict order which provides for it to operate pending the submission of a Regional Strategic Environmental Impact Assessment.

28. Ido not think that the learned actingjudge ought to have included this provision in his order. It is final in effect and would result in the (interim) interdict surviving the dismissal of the review in due course. It may be that the review court could be persuaded to include directions to a functionary to whom the case is remitted regarding the approach which that functionary should take to the question but that does not in my view justify an interim order in those terms. I have a discretion whether to direct rescission of the interim order or its variation In my view, the interim order should be varied by the excision of that provision.

29. Finally, on costs: both sides have enjoyed a measure of success. In addition, the applicants sought, at the unopposed level, relief which amounted to indulgences. I think the fairest is to make no order as to costs.

30. I make the following orders:

1. Orders for the joinder of the Senior General Manager: Environment and Tourism (Limpopo Government) as seventh respondent and for the amendment of the applicants' notice of motion dated 24 October 2014 are granted in terms of prayers 1 and 2 of the applicants' notice of motion dated 18 February 2015.

2. The supplementary founding affidavit filed with the notice of motion dated 18 February 2015 is admitted to the record of the main application.

3. The order of this court granted on 9 December 2014 hereby varied by the deletion of the phrase at the end of paragraph 1 of that order which reads

pending the carrying out and finalisation by the Second Respondent of a Regional Strategic Environmental Impact Assessment in respect of the cumulative effects of all (CoAL's] proposed mining projects upon pre-existing commercial activities in the Applicants' geographical area of interest and the issue of any authorisations consequent upon this process.

4. There will be no order as to costs in relation to the applications for joinder, amendment and supplementation and for rescission of the order granted on 9 December 2014.

_______

NB Tuchten

Judge of the High Court

7 December 2015