Rethinking the Regulation of Mining Activities in a Declared Protected Environment: MEJCON Case Analysis
This note assesses the importance of the right to procedural fairness in terms of section 33 of the South African Constitution. The assessment is undertaken in the context of Mining and Environmental Justice Community Network of South Africa v Minister of Environmental Affairs, a case from which the North Gauteng High Court delivered a well thought out judgment in late 2018. The matter was brought up by a coalition of eight civil society organisations advocating for environmental justice. The coalition challenged a range of issues in respect of mining and environmental authorisations (by the Minister of Environmental Affairs and the Minister of Mineral Resources, respectively) that permitted underground coal mining in a declared protected area in Mabola, Mpumalanga. For determination by the court was the lawfulness of those authorisations giving rise to proposed coal-mining projects in the Mabola Protected Environment (MPE) near Wakkerstroom. In its determination, the court considered both the procedural and substantive grounds of review and consequently ruled overwhelmingly in favour of the coalition. The judgment significantly reasserts the significance of the right to procedural fairness and have important consequences and lessons for errant ministers. It is argued in the note that egregious violations of this kind do not only prejudice vulnerable communities where they often happen but are also threatening South Africa’s strong constitutional democracy. The note further records the unlawful conduct of public officials and the resultant cost and consequence in the hope that conduct of this nature is not repeated. Lastly, the note submits, on the basis of this judgment, that increased effort remains necessary to achieve adequate compliance with constitutional principles, such as procedural fairness, by government officials.
Keywords: procedural fairness; environmental law; protected area; ministerial authorisations;South Africa