Director: Mineral Development, Gauteng Region v Save the Vaal Environment (Case No. 133/98) SCA 9, Supreme Court of Appeal of South Africa (12 March 1999), available at https://cer.org.za/wp-content/uploads/2010/08/Save-the-Vaal-Environment-v-DME.pdf or http://www.saflii.org/za/cases/ZASCA/1999/9.pdf
A local environmental association (“Save the Vaal Environment”) petitioned South Africa’s mining authority to comment on an application by Sasol Mining for a license to mine coal near the Vaal River. Because the mining authority determined that it was not obliged to provide the association an opportunity to comment on the application at that stage, the mining authority refused to provide such an opportunity and issued the mining license to Sasol Mining. Save the Vaal Environment challenged the mining authority’s decision.
On appeal, the mining authority and Sasol Mining argued that merely issuing a mining license has no environmental impact and infringes no rights, so no opportunity for public comment is needed until the stage of approving an environmental management program. The Supreme Court of Appeal rejected the appellants’ arguments, agreed with Save the Vaal Environment that the mining authority should have applied the audi alteram partem rule (or “audi-rule”) to provide an opportunity for comment, and dismissed the appeal with the following explanation:
The issue of a licence in terms of sec 9 enables the holder to proceed with the preparation of an environmental management programme, which, if approved, will enable him to commence mining operations. Without the sec 9 licence he cannot seek such approval. The granting of the sec 9 licence opens the door to the licensee and sets in motion a chain of events which can, and in the ordinary course of events might well, lead to the commencement of mining operations. It is settled law that a mere preliminary decision can have serious consequences in particular cases, inter alia where it lays “ ... the necessary foundation for a possible decision ...” which may have grave results. In such a case the audi-rule applies to the consideration of the preliminar decision (see Van Wyk N O v Van der Merwe 1957 (1) SA 181 (A) at 188 B - 189A.). In my view this is such a case.
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[T]he granting of a sec 9 licence enables the holder to apply to the Director to be exempted from the obligation to submit an environmental management programme (see sec 39 (2) (a)). It also enables the Director to grant temporary authorisation for mining to commence, pending the approval of an environmental management programme (sec 39 (4)). Whether or not the Director would have to afford an objector a hearing before doing either is unnecessary to decide. What matters is that, at the very least, the granting of a licence in terms of sec 9 empowers the holder to make such applications and thereby subject an objector to potential jeopardy in those respects. It follows that a hearing in terms of sec 39 may not address the appellants’ basic objection to the manner of mining, and may never take place or only take place after mining has already commenced.
In the result, I am of the view that the audi-rule applies when application for a mining licence is made to the Director in terms of sec 9 of the Act. Such a hearing need not necessarily be a formal one, but interested parties should at least be notified of the application and be given an opportunity to raise their objections in writing. If necessary, a more formal procedure can then be initiated. Nothing in sec 9 or in the rest of the Act either expressly or by necessary implication excludes the application of the rule, and there are no considerations of public policy militating against its application. On the contrary, the application of the rule is indicated by virtue of the enormous damage mining can do to the environment and ecological systems. What has to be ensured when application is made for the issuing of a mining licence is that development which meets present needs will take place without compromising the ability of future generations to meet their own needs (the criterion proposed in the Brundtland Report : World Commission on Environment and Development, Our Common Future, Oxford University Press 1987). Our Constitution, by including environmental rights as fundamental, justiciable human rights, by necessary implication requires that environmental considerations be accorded appropriate recognition and respect in the administrative processes in our country. Together with the change in the ideological climate must also come a change in our legal and administrative approach to environmental concerns.