Baleni and Others v Regional Manager: Eastern Cape Department of Mineral Resources and Others (Centre for Applied Legal Studies as amicus curiae) [2020] 4 All SA 374 (GP)

On 11 September 2020, the Gauteng Division of the High Court in Pretoria delivered an interesting judgment in Baleni regarding the rights of interested and affected parties in accessing a mining right application. Accordingly, this article seeks to set out the legal implications of this judgment on access to a mining right application or information.

Factual background

The applicants brought an application in their personal capacity, including a representative of the community, regarding the mining right application (the MR application) submitted by Transworld Energy and Mineral Resources (TEM) in uMgungundlovu. TEM applied for a mining right on 3 March 2015 and the applicants wrote a letter to the regional manager on 17 March 2015 seeking to ascertain whether the MR application was filed with the regional manager and requested a copy of same. The regional manager replied to the applicants’ letter and confirmed that TEM had made an application for a mining right, which was already accepted in terms of the Mineral and Petroleum Resources Development Act 28 of 2002 (MPRDA) and the National Environmental Management Act 107 of 1998 (NEMA). Furthermore, the regional manager assured the applicants they would be consulted and advised them to request a copy of the MR application from TEM. However, TEM’s legal representatives advised the applicants that their request did not form part of what they were responsible for and advised the applicants to request the MR application from the offices of the Department of Mineral Resources in Port Elizabeth and that such information could be requested in terms of the Promotion of Access to Information Act 2 of 2000 (PAIA).

The applicants wrote a letter to the regional manager objecting to the proposed mining activity on the basis that it would disrupt their way of life and they were never notified of the MR application as set out in s 10 of the MPRDA. However, the regional manager responded to the applicants and advised them to request a copy of the MR application from the TEM’s representatives, who subsequently refused to provide such information. This refusal to provide the MR application ultimately led to the instituting of legal proceedings where the community applied for the following orders:

• Declaring them as interested and affected parties in terms of the MPRDA and, therefore, entitled in terms of ss 10(1) and 22(4) of MPRDA to be furnished with a copy of the MR application.
• Compelling the government officials to provide the applicants with a copy of the MR application by no later than five days from the date of the order.
• Prohibiting the government officials from awarding the mining right to TEM until the MR application has been furnished to the applicants and the processes for consultation, comment and objection contemplated in ss 10 and 22(4) have been completed.

Following copious amounts of correspondence between the parties, TEM forwarded the copy of the MR application to the applicant’s attorneys on 5 February 2016 and contended that the relief sought by the applicants had been rendered moot and also disputed whether the applicants were entitled to prayer 3 of the application. However, in July 2016 the applicants discovered or became aware that TEM’s majority shareholding and announced that it had entered into a Memorandum of Understanding to divest its 56% share in TEM and transfer it to BEE partner, Keysha. For this reason, the applicants were of the view that such developments necessitated an amendment of TEM’s MR application and accordingly requested a copy of the amendment and such request was refused by TEM.

Having regard to the above, the court was requested to determine the following issues –

• whether the applicants were entitled to a copy of the MR application in terms of ss 10 and 22 of the MPRDA; and
• whether the facts giving rise to the application rendered the relief sought academic?

At this point, it is worth noting that TEM contended that they ‘voluntarily provided the documents, the applicants were not entitled to them’ in terms of ss 10 and 22 of the MPRDA because the right of access to information is governed by PAIA and the applicants should utilise the process contemplated therein.

On the other hand, the applicants contended that on the proper interpretation of ss 10 and 22(4) of the MPRDA the applicants were entitled to the MR application automatically on request from regional manager. Furthermore, it was contended that an interpretation that is consistent with the objects of the MPRDA and the Constitution must be preferred over any other interpretation. Finally, the applicant argued that the purpose of consultation envisaged in s 10 of the MPRDA is to provide sufficient details to the landowners or occupiers to enable them to make an informed decision on the proposed mining activity.

Following an extensive analysis of the legal provisions of the relevant statutes (namely NEMA, the MPRDA and the Constitution), the court granted the relief sought by the applicants and held that the applicants should be provided with the MR application without having to utilise the procedure set out in PAIA. This decision was strengthened by the sluggish process contemplated in PAIA and that such process will defeat the purpose of making a meaningful consultation and submission to the MR application. Also, PAIA does not give automatic access to salient documentation, such as shareholding of the proposed mining project and, therefore, will prejudice the interested and affected parties in making substantial comments to the MR application.

Implications

To contextualise this aspect, it is important to set out the salient provisions contained in the relevant statutes. Section 10 of the MPRDA read with s 22 of MPRDA imposes an obligation on the mining right applicant to consult with the interested and affected parties in applying for a mining right. Section 32 of the Constitution guarantees everyone the right of access to information and
s 33 of the Constitution guarantees everyone to an administrative action that is lawful, reasonable, and procedurally fair. In giving effect to s 32 of the Constitution, the PAIA was promulgated and, therefore, any person requiring access to information will utilise the process set out therein.

However, this judgment has emphasised the importance of transparency and meaningful consultation with the stakeholders in the mining right application process in that the process set out in PAIA need not be followed if it cannot achieve specific results or enable parties to submit meaningful comments to the mining right application. However, it is unclear whether such request for information in terms of the MPRDA can be pursued after the granting of the mining right or renewal of such mining right as well. Finally, it is important to mention that this judgment considered the legal position prior to the amendment of the MPRDA regulations and the amendments have since introduced a robust, transparent and stringent requirements on meaningful consultation for mining right applications.

Madoda Mandla Aseza Koti LLB (UWC) Cert Mining and Prospecting Law and Climate Change Law (Wits) is a legal practitioner at Gwina Attorneys Inc in Johannesburg.

This article was first published in De Rebus in 2021 (Jan/Feb) DR 35.