APPLICANTS’ NOTES FOR ORAL ARGUMENT

This briefing contains the applicants' notes for oral argument in a High Court case challenging the decisions of the Ministers of Environmental Affairs and Mineral Resources to permit mining in the Mabola Protected Environment (MPE). The applicants, a group of environmental and human rights NGOs, argue that the decisions were made without transparency, procedural fairness, or regard for the specific statutory duties imposed by the National Environmental Management: Protected Areas Act (NEMPAA).

• The applicants allege a systemic lack of transparency by the State respondents, claiming the Ministers and their departments attempted to hide the decision-making process and acted dishonestly in responding to PAIA requests. Specifically, the Department of Environmental Affairs allegedly failed to disclose that a decision had been made on 20 August 2016 while only providing the initial request in November 2016.
• The applicants argue that the Ministers failed to provide procedural fairness as required by the Promotion of Administrative Justice Act (PAJA). They contend that the Ministers' justification for departing from these requirements was flawed, particularly regarding the lack of urgency, as the application process took place at a "leisurely pace" between May and November 2016.
• The briefing asserts that the Ministers failed to exercise their distinctive duties as constitutional trustees under NEMPAA, incorrectly assuming that compliance with other environmental legislation automatically satisfied NEMPAA's requirements. The applicants argue that NEMPAA provides an "additional and overriding layer of legislative protection".
• The applicants maintain that permission to mine in a protected environment should only be granted in "exceptional circumstances" based on a purposive interpretation of section 48(1)(ii) of NEMPAA, a standard they claim the Ministers failed to apply.
• The decision to permit mining is challenged on the grounds that it proceeded without an approved management plan and zoning scheme, which the applicants describe as an "essential building block of the protective regime under NEMPAA".
• The applicants argue that the Ministers ignored the interests of local communities by relying on a Social and Labour Plan (SLP) that was not actually before them at the time of the decision, using instead an "incomplete and inaccurate summary".
• The Ministers are accused of overlooking the SAS 2015 report, which identified a wetland (CVB5) with a "category A Ecological Importance and Sensitivity", meaning it is ecologically important on a national or international level.
• The briefing claims a failure to apply the precautionary principle, noting that the Ministers' conditions effectively authorized up to 20% loss of crucial category A and B wetlands without consequences for Atha-Africa Ventures.
• The applicants argue there is inadequate financial provision for post-closure rehabilitation, specifically regarding the treatment of acid mine drainage (AMD) which may decant up to 45 years after mine closure. They claim the current financial estimate of R304,966 is insufficient for long-term water treatment.
• The applicants contend that the Ministers should have awaited the finalization of statutory appeals before granting permission, as the precise nature of the authorized activity cannot be known until those appeals are resolved.

APA

Centre for Environmental Rights (2018). APPLICANTS’ NOTES FOR ORAL ARGUMENT. https://cer.org.za/wp-content/uploads/2018/10/Applicants-notes-for-oral-argument.pdf?x21779

Chicago

Centre for Environmental Rights. APPLICANTS’ NOTES FOR ORAL ARGUMENT. 2018. https://cer.org.za/wp-content/uploads/2018/10/Applicants-notes-for-oral-argument.pdf?x21779.

Wikipedia

{{cite report |author=Centre for Environmental Rights |title=APPLICANTS’ NOTES FOR ORAL ARGUMENT |date=16 October 2018 |url=https://cer.org.za/wp-content/uploads/2018/10/Applicants-notes-for-oral-argument.pdf?x21779 |access-date=17 August 2026 |via=Climate Insights Directory}}

BibTeX

@techreport{centreforenvironmentalrights2018applicants, author = {{Centre for Environmental Rights}}, title = {{APPLICANTS’ NOTES FOR ORAL ARGUMENT}}, institution = {Centre for Environmental Rights}, year = {2018}, month = oct, url = {https://cer.org.za/wp-content/uploads/2018/10/Applicants-notes-for-oral-argument.pdf?x21779}, urldate = {2026-08-17}, note = {Indexed by Climate Insights Directory} }