A recent High Court ruling underscores the more stringent requirements in recent amendments to the Mineral and Petroleum Resources Development Act (MPRDA) for mining right applicants to consult with community members, says law firm Webber Wentzel.
The firm points out that, on September 11, the Gauteng division of the High Court of South Africa in Pretoria – in the case of Duduzile Baleni and others versus regional manager: Eastern Cape Department of Mineral Resources and others case no 96628/2015 – issued a landmark judgment on the UMgungundlovu community’s right to access a mining right application.
The application was made by Transworld Energy and Mineral Resources (TEM) to the Department of Mineral Resources and Energy (DMRE) in terms of Section 22 of the MPRDA over the land on which the community resided.
Webber Wentzel reports that this judgment reinforces the latest amendments to the Mineral and Petroleum Resources Regulations – 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, Webber Wentzel explains, the community sought a declarator to enable 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.
As such, the firm says the judge, 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.
It was subsequently determined that the information contained in the mining right application was required by the community for a specific purpose.
Webber Wentzel points out that, although there were deficiencies in the DMRE's Promotion of Access to Information (PAIA) manual, the court noted that it was as though the DMRE did not know the identity of the interested and affected persons.
Further, the firm highlights that 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 socioeconomic rights in relation to mining right applications.
“[The judge] 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,” states Webber Wentzel.
For this reason, and others relating to the delays in obtaining information through the PAIA process, the judge 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, Webber Wentzel states, 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.
In addition, the firm points out that the court retracted from awarding costs in favour of the DMRE, because the DMRE had filed a notice to abide by the decision of the court from the outset of the matter.
“The DMRE said the landmark ruling would strengthen and extend the scope and application of the MPRDA, facilitating transparency and a more streamlined and expeditious consultation process,” states Webber Wentzel.