The Environmental Case Law Index is a collection of judgments from 10 African countries on topics relating to environmental law, both substantive and procedural. The collection focuses on cases where an environmental interest interacts with governmental or private interests.
Get started on finding judgments that are relevant to you by browsing the topic list on the left of the screen. Click the arrows next to the topic names to reveal a detailed list of sub-topics. Most judgments are accompanied by a short summary written by subject-area expert postgraduate students from the University of Cape Town.
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This was an appeal against the decision of the High Court to reverse the issuance of a mining licence the second appellant without hearing the respondents. The first appellant was the regional director responsible for providing mineral licenses and the second appellant was the mining company that had obtained a mining licence. The respondents wished to oppose the grant of the mining licence but a notice to the public which would have afforded them the opportunity to raise objections was not issue. The appellants contended that article 9 of the Minerals Act 50 of 1991 did not provide such a duty. The respondents contended that the right to be heard was a natural right and therefore a silent section could not be deemed to oust it.
The Supreme Court considered whether interested parties, wishing to oppose an application by the holder of mineral rights for a mining licence in terms of sec 9 of the act, were entitled to raise environmental objections and be heard by the first appellant, The court held that the right to be heard was such a critical right that it could not be easily ignored and the critical nature of environmental issues at the global level demanded that the first appellant involve the public on environmental assessment measures taken. The court stated further that there was an obligation on the first appellant to provide allow for a hearing on any objections before a license could be issued. Accordingly, the appellants’ case was dismissed.
The fifth respondent was created by statute for the purpose of implementing a project design to dam water. The dam was built and flooded the area that the appellant had obtained a mining lease for, making mining impossible. The government then unilaterally cancelled the appellants’ lease. The appellants filed an application to set aside this cancellation. Their application was granted.
The fifth respondent filed a counter-application to set aside as null and void the mining lease on the grounds that the mining lease was a nullity because it had allegedly been concluded without a recommendation by the Mining Board and without prior consultation with and approval of the Principal Chiefs within whose areas of jurisdiction the mining lease area fell. The fifth respondent further submitted that such recommendation and prior consultation and approval were peremptorily enjoined by s 6 of the Mining Rights Act No. 43 of 1967, so that non-compliance with both, or with either, of these requirements invalidated the granting of the mining lease by the government to the applicants and rendered it a nullity.
The court considered whether the mining lease complied with requirements of the Mining Rights Act. It found on the facts that the fifth respondent had successfully discharged the onus of proving that neither of the abovementioned requirements had been complied with before the lease was concluded. Accordingly, the lease was set aside. Costs were awarded in favour of the respondent herein.