High Court reinforces mining right applicants’ duty to consult

​​A recent High Court ruling has underscored the more stringent requirements in recent MPRDA amendments for applicants for mining rights to consult with community members​

On 11 September 2020, the High Court of South Africa, Gauteng Division, Pretoria, in the case of Duduzile Baleni and Others v Regional Manager: Eastern Cape Department of Mineral Resources and Others (CALS intervening) case no 96628/2015 (11 September 2020), issued a landmark judgment on the UMgungundlovu Community's (Community) right to access a mining right application made by Transworld Energy and Mineral Resources (SA) Pty Ltd (TEM) to the Department of Mineral Resources and Energy (DMRE) in terms of Section 22 of the Mineral and Petroleum Resources Development Act, 2002 (MPRDA) over the land on which the community resided.

The judgment reinforces the latest amendments to the Mineral and Petroleum Resources Regulations, 2015,which broadly expand the requirements of "meaningful consultation" and lay an onerous obligation on mining right applicants and holders to consult with members of the community in which the mining right application is subject.

In this matter, the community sought a declarator to allow interested and affected parties contemplated in sections 10 and 22 of the MPRDA, on request to the relevant Regional Manager of the DMRE, to furnish them with a copy of an application made in terms of section 22 of the MPRDA, subject to the DMRE redacting the mining right applicant's commercially-sensitive information.  TEM, after the issue of the court application, furnished the community with its mining right application, in a bid to render the community's application 'moot'. TEM argued that the applicants were not entitled to its application, as the MPRDA did not require it.

Makhubele J, in determining whether the community was entitled to a copy of TEM's mining right application and whether the facts giving rise to the application rendered the relief academic, concluded that the community could not be treated like ordinary members of the public in this situation. The information contained in the mining right application was required by the community for a specific purpose. The court noted that, although there were deficiencies in the DMRE's Promotion of Access to Information (PAIA) manual, it was as though the DMRE did not know the identity of the interested and affected persons.  Makhubele J also held that the applicants, unlike the general public, could be affected by the environmental impacts of the mining operations and that the MPRDA gave the community members specific socio-economic rights in relation to mining right applications.

Makhubele J held that meaningful consultation entailed a discussion of ideas on an equal footing, taking into consideration the pros and cons of each course and making concessions where necessary. For this reason, and others relating to the delays in obtaining information through the PAIA process, Makhubele J considered that the manner in which the community should obtain a copy of a mining right should not be restricted to the request processes in terms of PAIA, since the community should deal directly with the issues that will ultimately determine the fate of the mining right application.

Accordingly, the court granted the declaratory relief sought by the community and pronounced that members of a community in which a mining right application is subject should, upon request to a Regional Manager of the DMRE, automatically be entitled to access an applicant's mining right application, subject to the right of the applicant to redact commercially-sensitive information. It retracted from awarding costs in favour of the DMRE, because the DMRE filed a notice to abide by the decision of the court from the outset of the matter.

The DMRE said that the landmark ruling would strengthen and extend the scope and application of the MPRDA, facilitating transparency and a more streamlined and expeditious consultation process.

A copy of the judgment handed down on 11 September 2020 can be accessed here. 

A copy of the media statement by the DMR, dated 15 September 2020, can be accessed here.


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