mining and environment litigation review

The report analyzes 32 judicial precedents and 16 'live' cases to assess the legal landscape of mining and environmental rights in South Africa. It highlights a significant increase in litigation since the 2004 Mineral and Petroleum Resources Development Act (MPRDA), noting that while courts have made progressive rulings on land-use planning and consultation, there are critical gaps in jurisprudence regarding the National Environmental Management Act (NEMA) and the National Water Act (NWA). The document identifies systemic failures in the Department of Mineral Resources' (DMR) administrative processes, including lengthy appeal delays and inadequate public notification, and provides strategic recommendations for civil society to use constitutional norms and specific precedents to hold mining companies and the state accountable.

• The Constitutional Court in the Bengwenyama case established that the consultation process for prospecting rights must be substantive, requiring applicants to inform landowners in writing, provide sufficient detail on the operation's impact, and attempt to reach a mutually satisfactory agreement.
• The 2012 Constitutional Court decision in the Maccsand case affirmed that the MPRDA does not override municipal land-use planning legislation, meaning mining rights holders must still obtain necessary rezoning of land from local authorities.
• There is a systemic problem with the Department of Mineral Resources (DMR) regarding the time taken to decide internal appeals under the MPRDA, with some cases remaining undecided for over 18 months or nearly three years.
• The report identifies a critical gap in jurisprudence regarding the National Environmental Management Act (NEMA) and the National Water Act (NWA), noting that there is only one case dealing with mining companies' obligations under NEMA and only two regarding substantive obligations under the NWA.
• The Water Tribunal has adopted a restrictive interpretation of locus standi for appeals against water use licences (WUL), limiting the right to appeal to those who lodged written objections during a public participation process, if the regulator chose to allow such a process.
• Environmental satisfaction is a prerequisite for the approval of a prospecting right, yet the report found instances where the Environmental Management Plan (EMP) was approved only after the prospecting or mining right had already been granted.
• The report notes that the DMR often overrides the inputs and objections of other state environmental departments, such as the Mpumalanga Tourism and Parks Agency (MTPA), when granting mining rights.
• The use of contempt of court proceedings can be an effective method for enforcing constitutional environmental rights, provided the court order is capable of implementation.
• Mining companies may be held liable for environmental damage through the Land Claims Court, which has the competence to order compensation or the repair of environmental damage during land restitution.

APA

Centre for Environmental Rights (2012). mining and environment litigation review. https://cer.org.za/wp-content/uploads/2012/06/Wits-CER-Mining-Litigation-Review-Updated-18-June-2012.pdf?x21779

Chicago

Centre for Environmental Rights. mining and environment litigation review. 2012. https://cer.org.za/wp-content/uploads/2012/06/Wits-CER-Mining-Litigation-Review-Updated-18-June-2012.pdf?x21779.

Wikipedia

{{cite report |author=Centre for Environmental Rights |title=mining and environment litigation review |date=June 2012 |url=https://cer.org.za/wp-content/uploads/2012/06/Wits-CER-Mining-Litigation-Review-Updated-18-June-2012.pdf?x21779 |access-date=23 October 2026 |via=Climate Insights Directory}}

BibTeX

@techreport{centreforenvironmentalrights2012mining, author = {{Centre for Environmental Rights}}, title = {{mining and environment litigation review}}, institution = {Centre for Environmental Rights}, year = {2012}, month = jun, url = {https://cer.org.za/wp-content/uploads/2012/06/Wits-CER-Mining-Litigation-Review-Updated-18-June-2012.pdf?x21779}, urldate = {2026-10-23}, note = {Indexed by Climate Insights Directory} }