Mining and Environmental Justice Community Network of South Africa and others v Minister of Environmental Affairs and others, High Court of the Republic of South Africa, Gauteng Division, Pretoria, Case No. 50779/2017 (8 November 2018):
Various environmental groups sought review of two government decisions to permit coal mining in a protected wetland - Mabola Protected Environment (MPE). The High Court of South Africa reviewed the two government decisions and set them aside, primarily due to violations of a national administrative law (lack of transparency and opportunity for public participation), a national environmental management statute (failure to consider enumerated environmental principles, particularly one requiring special attention be given to management and planning decisions regarding wetlands), and a national protected areas law (exercising discretion to permit mining in the MPE in the absence of an approved management plan for the MPE, the failure to consider relevant information about the interests of local communities, the failure to wait until all internal appeal procedures corresponding to previously required authorizations have finalized, and the failure to fulfill distinctive duties arising from the supremacy of this statute over other legislation when the management and trusteeship of protected areas is at issue).
The court didn’t decide some of the alleged grounds for review because it wasn’t necessary to do so in order to set aside the two decisions at issue; however, the court did comment (citing a law review article regarding climate change and public trusteeship) that:
[A] failure to take South Africa’s international responsibilities relating to the environment into account and a failure to take into account that the use and exploitation of non-renewable natural resources must take place in a responsible and equitable manner would not satisfy the “higher level of scrutiny” necessary when considering whether mining activities should be permitted in a protected environment or not. Such failures would constitute a failure by the state of its duties as trustees of vulnerable environments … [and] might also amount to impermissibly failing to take relevant considerations into account.
The court not only refused the government’s application for postponement of this judicial review, but imposed a punitive cost order due to the timing and manner of the application for postponement (it was submitted as the government was trying to exclude the proposed mining area from the MPE, so as to make the two permissions at issue no longer required and, thus, the main application moot). The court emphasized: “Even if an issue of true mootness had arisen, the court has a discretion to still hear a matter.” Para. 12.11.
Regarding the matter of costs for this judicial review, the court determined:
[T]here was no justification for the lack of transparency or the departure from sections 3 and 4 of the [administrative law statute] PAJA, both of which could have gone a long way in possibly even preventing litigation. Compliance therewith would certainly have removed a large portion of the grounds of review which featured in this matter. A punitive costs order is therefore justified.
Para. 13. The court determined that the mining proponent should neither be liable nor entitled to costs because it was a necessary, but involuntary, party and did not seek costs.
The court set aside both permissions for the mining project in the MPE and remitted the application for permission for reconsideration in light of “all relevant consideration” and the following specific considerations: (1) compliance with the national administrative law statute; (2) the interests of local communities and the environmental principles of the national environmental management statute; (3) previously required authorizations must be final (i.e., after statutory appeals are resolved) before permissions may be granted; and, (4) a management plan for the MPE must be approved and the contents of said plan must be taken into consideration.