THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Not reportable
Case No: 1105/2019
In the matter between:
GLOBAL ENVIRONMENTAL TRUST
FIRST APPELLANT
MFOLOZI COMMUNITY ENVIRONMENTAL

JUSTICE ORGANISATION

SECOND APPELLANT
SABELO DUMISANI DLADLA

THIRD APPELLANT
and
TENDELE COAL MINING (PTY) LTD
FIRST RESPONDENT
MINISTER OF MINERALS AND ENERGY           SECOND RESPONDENT
MEC: DEPARTMENT OF ECONOMIC
DEVELOPMENT, TOURISM AND
ENVIRONMENTAL AFFAIRS

THIRD RESPONDENT
MINISTER OF ENVIRONMENTAL
AFFAIRS

FOURTH RESPONDENT
MTUBATUBA MUNICIPALITY                                       FIFTH RESPONDENT
HLABISA MUNICIPALITY                                         SIXTH RESPONDENT
INGONYAMA TRUST                                                   SEVENTH RESPONDENT
EZEMVELO KZN WILDLIFE                                 EIGHTH RESPONDENT
AMAFA AKWAZULU-NATALI
HERITAGE COUNCIL                                                   NINTH RESPONDENT
CENTRE FOR ENVIRONMENTAL RIGHTS
AMICUS CURIAE

MPUKUNYONI TRADITIONAL COUNCIL
AMICUS CURIAE
MPUKUNYONI COMMUNITY MINING FORUM AMICUS CURIAE
THE ASSOCIATION OF MINE WORKERS
AND CONSTRUCTION UNION

AMICUS CURIAE
THE NATIONAL UNION OF MINEWORKERS        AMICUS CURIAE

Neutral citation: Global Environmental Trust and Others v Tendele Coal
Mining (Pty) Ltd and Others (1105/2019) [2021] ZASCA 13
(09 February 2021)
Coram:
PONNAN, SCHIPPERS, PLASKET AND NICHOLLS JJA AND
LEDWABA AJA
Heard:
03 November 2020

Delivered:  This judgment was handed down electronically by circulation to the
parties’ representatives by email. It has been published on the Supreme Court of
Appeal website and released to SAFLII. The date and time of hand-down is
deemed to be 10H00 on 09 February 2021.
Summary: Interdict to stop coal mining – interpretation of statutes – National
Environmental Management Act 107 of 1998 (NEMA) – environmental
authorisation to undertake listed activity under s 24 – whether required by holder
of mining right and environmental management programme in terms of the
Mineral and Petroleum Resources Development Act 28 of 2002 – no case made
out for interdict in founding papers – municipal approval of land use – Spatial
Planning and Land Use Management Act 16 of 2013, KwaZulu-Natal Planning
and Development Act 6 of 2008 and Mtubatuba Local Municipality Spatial
Planning and Land Use Management By-Law, 2017 – not required by virtue of
transitional arrangements – National Environmental Management Waste Act 59
of 2008 – waste management licence not required by reason of transitional

provision – non-compliance with the KwaZulu-Natal Heritage Act 4 of 2008 –
relocation of ancestral graves – no reasonable apprehension of harm – interdict
refused.

ORDER

On appeal from: KwaZulu-Natal Division of the High Court, Pietermaritzburg
(Seegobin J sitting as court of first instance): judgment reported sub nom Global
Environmental Trust and Others v Tendele Coal Mining (Pty) Ltd and Others
[2019] 1 All SA 176 (KZP).
The appeal is dismissed.

JUDGMENT

Schippers JA:
[1] The central issue in this appeal is whether the first respondent, Tendele
Coal Mining (Pty) Ltd (Tendele), is mining without the necessary statutory
authorisations and approvals. The matter arises from an unsuccessful application
by the appellants in the KwaZulu-Natal Division of the High Court,
Pietermaritzburg (the high court), to interdict Tendele from continuing with any
mining operations at its Somkhele Mine in Mtubatuba, KwaZulu-Natal (the
mine). The appeal is with the leave of the high court.

[2] The first appellant is Global Environmental Trust, established inter alia to
preserve the planet and its natural resources. The second appellant, Mfolozi
Community Environmental Justice Organisation, is a not-for-profit organisation,

whose objects include the implementation of environmentally sustainable
projects for the Fuleni community in northern KwaZulu-Natal (KZN). The third
appellant and main deponent to the founding papers, Mr Sabelo Dumisani Dladla,
an Eco-tourism Management student who lives in Nlolokotho, near the mine,
withdrew from this appeal on 29 October 2020. Tendele consented to the
withdrawal of the appeal and seeks no order for costs. In what follows I refer to
the first and second appellants as ‘the appellants’.

[3] The amici curiae represented in the appeal are the Centre for
Environmental Rights (CER) and as a group, Mpukunyoni Traditional Council,
Mpukunyoni Community Mining Forum, the Association of Mine Workers and
Construction Union and the National Union of Mineworkers (the Mpukunyoni
amici). The CER, in its written and oral submissions, contended that the high
court erred in its interpretation of the relevant statutory provisions, and in ordering
the appellants to pay Tendele’s costs. The Mpukunyoni amici submitted that the
orders sought by the appellants, if granted, would ultimately lead to the closure
of the mine which, in turn, would have disastrous effects on neighbouring
communities.

Facts
[4] The basic facts can be shortly stated. The mine has one of the largest
resources of open-pit mineable anthracite reserves in South Africa and is the
principal supplier of anthracite to ferrochrome producers in the country.
Ferrochrome is an essential component in the production of stainless steel. South
Africa is one of the largest producers of ferrochrome in the world, second only to
China. Tendele began mining operations in 2006 pursuant to the grant of an ‘old
order’ mining licence and subsequently a mining right, and the approval of an
Environmental Management Programme (EMP) under the Mineral and Petroleum
Resources Development Act 28 of 2002 (MPRDA).

[5] The mine comprises a single mining area on Reserve No 3 (Somkhele) No
15822 (Reserve No 3). However, the mining operations are divided between five
areas and separate mining rights and separate EMPs apply to the different areas.
The Area 1 mining right was granted to Tendele on 21 May 2007 and the EMP
applicable to that mining right, approved on 22 June 2007 by the former
Department of Mineral Resources (DMR). The Areas 2 and 3 converted mining
right was granted to Tendele on 1 February 2011. On 8 March 2013 this right was
amended to include the KwaQubuka and Luhlanga areas. The EMP applicable to
the Areas 2 and 3 converted mining right was approved on 30 March 2011.
Amendments to this EMP to cater for the inclusion of the KwaQubuka and
Luhlanga areas, were approved on 29 May 2012. The mining right in respect of
Areas 4 and 5 was granted on 31 May 2016. The EMP applicable to this right was
approved on 26 October 2016.

[6] Tendele is actively mining only in Area 1 and the extended area of Area 2,
namely the KwaQubuka and Luhlanga areas. The mine’s coal wash plants are
located in Area 2. No mining operations are conducted in Area 3. Mining in Area
2 ceased in January 2012 due to depletion of anthracite reserves. Mining
operations have not commenced in Areas 4 and 5.

[7] In October 2017 the appellants sought an interdict to prevent Tendele from
carrying on with any mining operations in the following areas: Area 1 as
described in the mining right dated 22 June 2007; Areas 2 and 3 described in the
mining right dated 30 March 2011; the KwaQubuka and Luhlanga areas described
in an amendment to the mining right dated 8 March 2013; and a part of the
Remainder of Reserve No 3 No 15822, in extent 21 233.0525 hectares, described
in the mining right dated 26 October 2016.

[8] The interdict was sought on the basis that Tendele was ‘non-compliant in
respect of the permits or approvals required’ in relation to mining, environmental
authorisation, land use, interference with graves and waste management. More
specifically, the appellants alleged that Tendele has no environmental
authorisation issued in terms of s 24(2) of the National Environmental
Management Act 107 of 1998 (NEMA) to conduct mining operations. Tendele
has no authority, approval or permission from a municipality to use land for
mining operations. Tendele has no written approval in terms of s 35 of the
KwaZulu-Natal Heritage Act 4 of 2008 (the KZN Heritage Act) to damage, alter
or exhume traditional graves. Tendele does not have a waste management licence
issued by the fourth respondent, the Minister of Environmental Affairs (the
Environment Minister), under s 43(1) of the National Environmental
Management: Waste Act 9 of 2008 (the Waste Act), or by the second respondent,
the Minister of Minerals and Energy (the Mining Minister), in terms of s 43(1A)
of the Waste Act.

[9] Tendele opposed the application for an interdict, essentially on the
following grounds. Tendele’s mining operations are undertaken in terms of valid
mining rights and EMPs under the MPRDA. The legislative amendments
introduced with effect from 8 December 2014, that gave effect to the so-called
‘One Environmental System’, in terms of which the holder of a mining right is
required to have environmental authorisation for its operations, contain
transitional arrangements for the continuation of mining operations lawfully
conducted prior to those amendments. In terms of the One Environmental System,
all the environmental aspects of mining are regulated through NEMA and all
environmental provisions are repealed from the MPRDA.1 The mine operates

1 Minister of Mineral Resources v Stern and Others; Treasure the Karoo Action Group and Another v Department
of Mineral Resources and Others [2019] ZASCA 99; [2019] 3 All SA 684 (SCA) para 21. The One Environmental
System is expressly recognised in s 50A(2) of NEMA, which provides:

lawfully, in compliance with the relevant land-use planning laws. The waste
management activities by Tendele are authorised in terms of the transitional
provisions of the Waste Act, which provide for the continuation of such activities
lawfully undertaken prior to the amendment on 29 November 2013, of the list of
waste management activities that have a detrimental effect on the environment.

[10] Tendele accepted that it had previously removed or altered traditional
graves without the necessary authorisation, but asserted that it did so after
consultation with the families concerned. Since 2017 it has been working in
collaboration with the ninth respondent, AMAFA aKwaZulu-Natali Heritage
Council (AMAFA Heritage Council), and a comprehensive procedure for future
relocation of graves has been established.

[11] The high court (Seegobin J) dismissed the application with costs. Its main
findings may be summarised as follows. The appellants failed to establish a
proper cause of action: they did not identify precisely the activities undertaken by
Tendele without the necessary environmental authorisation. Prior to the coming
into force of the One Environmental System on 8 December 2014, the
environmental impacts of mining were regulated exclusively under the MPRDA
in terms of approved EMPs. Section 12(4) of the National Environmental
Management Amendment Act 62 of 2008 (the 2008 NEMA Amendment Act),

‘Agreement for the purpose of subsection (1) means the agreement reached between the [Environment] Minister,
the Minister responsible for water affairs and the Minister responsible for mineral resources titled One
Environmental System for the country with respect to mining, which entails–
(a) that all environment -related aspects would be regulated through one environmental system which is the
principal Act [NEMA] and that all environmental provisions would be repealed from the Mineral and
Petroleum Resources Development Act, 2002;
(b) that the Minister sets the regulatory framework and norms and standards, and that the Minister
responsible for Mineral Resources will implement provisions of the principal Act and the subordinate
legislation as far as it relates to prospecting, exploration, mining or operations;
(c) that the Minister responsible for Mineral Resources will issue environmental authorisations in terms of
the principal Act for prospecting, exploration, mining or operations, and that the Minister will be the
appeal authority for these authorisations; and
(d) that the Minister, the Minister responsible for Mineral Resources and the Minister responsible for Water
Affairs agree on fixed time-frames for the consideration and issuing of the authorisations in their
respective legislation and agreed to synchronise the time-frames.’

which provides that an EMP approved under the MPRDA must be regarded as
having been approved in terms of NEMA, has the status of an environmental
authorisation under NEMA. The purpose of this transitional provision was to
allow the holder of an EMP lawfully conducting mining operations as at 8
December 2014, to continue to do so after that date. This interpretation is
supported by the presumption against the retrospective operation of statutes.

[12] The high the court concluded that the Mining Minister was satisfied with
Tendele’s EMPs and the manner in which it conducted its mining operations,
because no action had been taken against Tendele in terms of s 12(5) of the 2008
NEMA Amendment Act. This provision states that if the Mining Minister is of
the opinion that mining operations are likely to result in unacceptable pollution,
ecological degradation or damage to the environment, the Minister may direct the
holder of a mining right to take action to upgrade an EMP to address the
deficiencies. In terms of s 24L(4) of NEMA, a competent authority empowered
under Chapter 5 to issue an environmental authorisation (the Mining Minister),
may regard ‘an authorisation in terms of any other legislation’ that meets all the
requirements stipulated in s 24(4), as an environmental authorisation in terms of
Chapter 5. Tendele’s EMPs constitute authorisations in terms of any other
legislation.

[13] The high court held that the laws relating to land use, requiring authority,
approval or permission from the relevant municipality, do not apply to Tendele,
whose mining operations predate the coming into force of those laws. Tendele
does not require a waste management licence under the Waste Act since it was
lawfully conducting mining operations in terms of approved EMPs. The
appellants were not entitled to an interdict, since they failed to establish a
reasonable apprehension that Tendele would exhume or relocate traditional
graves without the necessary statutory safeguards.

Environmental authorisation
[14] The issue on this part of the case, is whether Tendele requires, in addition
to a mining right and an EMP in terms of the MPRDA, environmental
authorisation under NEMA for activities incidental to mining, specified as ‘listed
activities’ in the relevant environmental impact assessment (EIA) regulations.
Section 24F(1)(a) of NEMA prohibits the commencement of ‘listed activities’
without environmental authorisation. Listed activities are those identified in terms
of ss 24(2)(a) and 24(2)(d) of NEMA.

[15] Acting in terms of s 24(2)(a) of NEMA (and its predecessor, s 21 of the
Environment Conservation Act 73 of 1989 (ECA)) the Environment Minister has
identified numerous listed activities requiring environmental authorisation. Since
the first list of activities was published on 5 September 1997 in terms of the ECA,2
until the most recent list published on 4 December 2014 under NEMA,3 there
have been amendments and additions to, and removal and replacement of, listed
activities in the EIA regulations.

No proper cause of action?
[16] The appellants alleged that normally, mining is a listed activity which has
an impact on the environment and thus requires environmental authorisation in
terms of NEMA. However, they did not identify the listed activities that Tendele
allegedly commenced without environmental authorisation, nor the date on which
those activities commenced. Counsel for Tendele submitted that this was fatal to

2 ‘The Identification under Section 21 of Activities which may have a Substantial Detrimental Effect on the
Environment GN R1182, GG 18261, 5 September 1997’ (as amended).
3‘List of Activities and Competent Authorities Identified in terms of Sections 24(2) and 24D GN R983, 984 and
985, GG 38282, 4 December 2014’ (as amended).

their case, with the result that the issue as to the proper interpretation of the
MPRDA and NEMA concerning an environmental authorisation contemplated in
NEMA, did not arise on the founding papers. This submission is unsound, for the
reasons advanced below.

[17] First, there is nothing in the answering affidavit that even suggests that the
application should be dismissed because the appellants failed to state the listed
activities conducted by Tendele without environmental authorisation. Neither did
Tendele oppose the application on the basis that it was not engaged in any listed
activity. Instead, Tendele’s sole defence was that no environmental authorisation
under NEMA was necessary because its mining operations were conducted in
terms of its mining rights and EMPs issued under the MPRDA.

[18] What crystallised as the main issue between the parties, is easily explained
in the light of the facts leading up to the application, set out in the founding
affidavit. In June 2017 the appellants’ attorney wrote to the DMR and the
Department of Environmental Affairs (DEA), stating that Tendele was
conducting activities listed in the EIA Regulations Listing Notices (no details
were given), and requesting a copy of all environmental authorisations issued to
Tendele, together with supporting documentation. The DMR replied that the
EMPs issued under the MPRDA were deemed to be EMPs issued under NEMA,
and that any environmental authorisations issued by the DEA was in the process
of being transferred to the DMR for monitoring and compliance.

[19] It turned out that Tendele has no environmental authorisation in terms of
NEMA to conduct any listed activity. Indeed, this is common ground. Its
approach throughout was that it did not require environmental authorisation
because the environmental impacts of mining were regulated exclusively by the
MPRDA in terms of approved EMPs. In June 2017 Tendele issued a public

statement that according to the statutory framework that governed mining in
South Africa, the ECA and NEMA did not apply to mining operations at the
relevant time.

[20] The appellants therefore approached the high court, claiming that Tendele
is mining unlawfully because it has no environmental authorisation in terms of
s 24 of NEMA. Unsurprisingly, the founding affidavit states that this is ‘common
cause from the correspondence’; and the high court noted that whether Tendele
was required to obtain environmental authorisation under s 24, was an issue for
determination. The facts thus show that the appellants had no reason to anticipate
any dispute as to whether Tendele’s mining operations triggered any listed
activity. This is buttressed by the fact that Tendele at no stage, raised such dispute.
Had Tendele denied that its mining operations triggered any listed activities, the
appellants could have dealt with such denial in their founding or replying papers.

[21] There was accordingly no dispute between the parties as to whether
Tendele was conducting listed activities. Solely for these reasons, Tendele’s
argument has no merit: it is opportunistic and contrived. But even if there was
any dispute of fact as to whether Tendele’s mining operations included listed
activities, it should be resolved against Tendele. As this Court stated in
Wightman:4
‘When the facts averred are such that the disputing party must necessarily possess knowledge
of them and be able to provide an answer (or countervailing evidence) if they be not true or
accurate but, instead of doing so, rests his case on a bare or ambiguous denial the court will
generally have difficulty in finding that the test [for the resolution of factual disputes in motion
proceedings] is satisfied . . . If that does not happen it should come as no surprise that the court
takes a robust view of the matter.’

4 Wightman t/a J W Construction v Headfour (Pty) Ltd and Another [2008] ZASCA 6; 2008 (3) SA 371 (SCA)
para 13.

[22] Secondly, Seegobin J, dealing with environmental authorisations and
listing notices prior to the amendments which came into effect on 8 December
2014, said this:
‘It seems that prior to 8 December 2014 mining per se was not a listed activity, however anyone
intending to embark on mining would of necessity have to perform certain activities which
were listed activities (e.g. establishing infrastructure for bulk transportation of water; facilities
for the storage of fuel; clearing indigenous vegetation covering more than 1 hectare, etc) and
would therefore have required environmental authorisation for those activities in terms of s 24.’

[23] This is a dictum by Rogers J in Mineral Sands Resources,5 which in my
view is correct. Given that mining inevitably involves the performance of listed
activities, the high court’s criticism that the founding affidavit ‘does not go far
enough to establish a proper cause of action’, is baffling.

[24] Thirdly, the inescapable inference to be drawn from the facts in the papers,
and the nature and extent of Tendele’s mining operations (according to the
answering affidavit, ‘Somkhele has one of the largest resources of open-pit
mineable anthracite reserves in South Africa’), is that Tendele conducts listed
activities as contemplated in the EIA listing notices. Open pit mining of necessity
involves clearing indigenous vegetation covering more than one hectare. The
answering affidavit states that Tendele has not yet commenced mining operations
in Areas 4 and 5 – comprising 21 233 hectares (more than 200 km²) and some ten
times larger than the areas covered by the other mining rights combined.

[25] Further, Tendele conducts conventional truck and shovel mining operations
using explosives, and it utilises water in bulk supply at its coal washing plants

5 Mineral Sands Resources (Pty) Ltd v Magistrate for the District of Vredendal, Kroutz NO and others [2017] 2
All SA 599 (WCC) para 8.

located in Area 2. As stated in the affidavit of the Mpukunyoni amici, and as
Tendele’s main deponent, Mr Jan du Preez, must know, an investment for the
establishment for a third wash plant, which would add an additional 400 000
tonnes of saleable energy product to the 1.2 million tonnes of anthracite produced
per annum, has been approved. Environmental authorisation is required for the
establishment of facilities for the storage of fuel; infrastructure for the bulk
transportation of water; and buildings and structures for the storage of explosives.

[26] Finally, the question whether Tendele is mining unlawfully because it has
no environmental authorisation in terms of s 24 of NEMA was squarely raised on
the papers. This question is specifically relevant to the mining right granted to
Tendele in 2016, which covers Areas 4 and 5 where mining has not yet
commenced. The answering affidavit states that even after the introduction of the
One Environmental System in 2014, which requires the holder of a mining right
to obtain environmental authorisation under NEMA, this does not apply to
Tendele whose mining operations remain lawful by virtue of transitional
arrangements.

[27] For these reasons, I am unable to agree with the high court’s criticism that
the appellants failed ‘to establish a proper cause of action on the issue of any
illegality on the part of Tendele’. But quite apart from the pleadings issue, as
rightly submitted by the CER, it is necessary for this Court to pronounce on the
interpretive question for two reasons. First, the high court’s order stands until it
is set aside by this Court and is binding in KZN. This, as appears from Mineral
Sands Resources,6 gives rise to a divergence of interpretation of the relevant
statutory provisions in the KZN Division and other Divisions in the country.
Second, the absence of clarity and certainty concerning the correct interpretation

6 Mineral Sands fn 5.

will potentially weaken the environmental protections sought to be achieved by s
24 of the Constitution and NEMA. This, in turn, would result in the flouting of
environmental standards and undermine the rule of law.7

The MPRDA does not cover environmental impacts of mining
[28] As stated above, the high court accepted that prior to the commencement
of the One Environment System on 8 December 2014, anyone intending to mine
would of necessity undertake listed activities and require environmental
authorisation in terms of s 24 of NEMA. Despite this, the court held that the
decision to grant a mining right and approve a mining EMP, ‘effectively
constituted the environmental authorisation to conduct the mining activity’.

[29] Counsel for the appellants argued that the high court was wrong to hold
that the environmental impacts of mining were regulated exclusively through the
MPRDA and the requirement to obtain an EMP under that Act before
commencing mining. The high court’s interpretation, it was argued, collapses
NEMA into the MPRDA, instead of allowing each statute to regulate
environmental matters in tandem.

[30] Counsel for Tendele, however, submitted that the MPRDA was enacted to
cover the field in relation to the environmental impacts and management of
mining-related activities. The legislature, so it was submitted, made the
implementation of the MPRDA subject to the principles in s 2 of NEMA, but left
the interpretation thereof and decision-making in the hands of the functionaries
of the DMR in accordance with the MPRDA and the regulations made under it.

7 The rule of law, enshrined in s 1 of the Constitution, requires that legislation be enacted and publicised in a clear
and accessible manner to enable people to regularise their conduct and affairs accordingly. A decision on the
proper construction of NEMA is necessary for mines to regulate their conduct and affairs lawfully.

[31] Both the MPRDA and NEMA are statutes that give effect to the right to
have the environment protected for the benefit of present and future generations,
enshrined in s 24 of the Constitution.8 It is a settled principle that courts are
required to interpret statutes purposively, in conformity with the Constitution and
in a manner that gives effect to the rights in the Bill of Rights.9 In Fuel Retailers,10
the Constitutional Court said:
‘The role of the courts is especially important in the context of the protection of the environment
and giving effect to the principle of sustainable development. The importance of the protection
of the environment cannot be gainsaid. Its protection is vital to the enjoyment of the other rights
contained in the Bill of Rights; indeed, it is vital to life itself.’

[32] The Constitutional Court has explained NEMA’s structural and integrative
role regarding the protection of the environment, as follows:
‘NEMA was enacted as a general statute that coordinates environmental functions performed
by organs of state. It also provides for “co-operative environmental governance by establishing
principles for decision-making on matters affecting the environment”. As is evident from the
long title, NEMA was passed to establish a framework regulating the decisions taken by organs
of state in respect of activities which may affect the environment. It lays down general
principles which must be followed in making decisions of that nature.’11

8 Maccsand (Pty) Ltd v City of Cape Town and Others [2012] ZACC 7; 2012 (4) SA 181 (CC) para 8. Section 4
of the Mineral and Petroleum Resources Development Act 28 of 2002 (MPRDA) states that when construing its
provisions, any reasonable interpretation consistent with its objects (which includes giving effect to s 24 the
Constitution) must be preferred. Section 24 of the Constitution provides:
‘Environment
Everyone has the right–
(a) to an environment that is not harmful to their health or well-being; and
(b) to have the environment protected, for the benefit of present and future generations, through reasonable
legislative and other measures that–
(i)
prevent pollution and ecological degradation;
(ii)
promote conservation; and
(iii)
secure ecologically sustainable development and use of natural resources while promoting
justifiable economic and social development.’
9 Investigating Directorate: Serious Economic Offences and Others v Hyundai Motor Distributors (Pty) Ltd and
Others In re: Hyundai Motor Distributors (Pty) Ltd and Others v Smit NO and Others 2001 (1) SA 545 (CC) para
23; Independent Institute of Education (Pty) Ltd v KwaZulu-Natal Law Society and Others [2019] ZACC 47; 2020
(2) SA 325 (CC) paras 1-2.
10 Fuel Retailers Association of Southern Africa v Director-General: Environmental Management, Department of
Agriculture, Conservation and Environment, Mpumalanga Province and Others 2007 (6) SA 4 (CC) para 102.
11 Maccsand fn 8 para 9, footnotes omitted.

[33] These mandatory principles, set out in s 2(1) of NEMA, must be applied
when an organ of state takes any decision in terms of NEMA or any statutory
provision concerning the protection of the environment, and guide the
interpretation, administration and implementation of NEMA and any other law
concerned with environmental protection or management.12

[34] Consistent with these principles, sustainable development and sustainable
use and exploitation of natural resources are at the core of the protection of the
environment. Thus, s 2(4)(a) of NEMA imposes sustainable development which
requires that a ‘risk-averse and cautious approach is applied’ whereby ‘negative
impacts on the environment and on people’s environmental rights be anticipated
and prevented, and where they cannot be altogether prevented, are minimised and
remedied’.13 NEMA requires that the environment be protected by securing
‘ecologically sustainable development and use of natural resources while
promoting justifiable economic and social development’.14

[35] The integrative approach to the protection and management of the
environment is emphasised in the language of NEMA itself. Section 2(4)(b)
states:
‘Environmental management must be integrated, acknowledging that all elements of the
environment are linked and interrelated, and it must take into account the effects of decisions
on all aspects of the environment and all people in the environment by pursuing the selection
of the best practicable environmental option.’

12 Section 2(1) of NEMA provides:
‘The principles set out in this section apply throughout the Republic to the actions of all organs of state that may
significantly affect the environment and–
(a) . . .
(b) serve as the general framework within which environmental management and implementation plans must be
formulated;
(c) serve as guidelines by reference to which any organ of state must exercise any function when taking any
decision in terms of this Act or any statutory provision concerning the protection of the environment;
(d) . . .
(e) guide the interpretation, administration and implementation of this act, and any other law concerned with the
protection or management of the environment.’
13 Sections 2(4)(a)(vii) and 2(4)(a)(viii).
14 Preamble to NEMA.

[36] As already stated, s 24(2)(a) of NEMA empowers the Environment
Minister to identify ‘activities which may not commence without environmental
authorisation from the competent authority’. It must be stressed that s 24(2)(a) is
not confined to activities that relate specifically to mining: once an activity has
been listed in terms of that provision, environmental authorisation to conduct that
activity must be obtained. Listed activities, as stated, include establishing
infrastructure for the bulk transportation of water and facilities for the storage of
fuel, and clearing indigenous vegetation.15 So, nothing turns on the fact that listed
activities specifically related to mining, identified by the Environment Minister
in terms of s 24 of NEMA and published in the EIA Regulations of 21 April 2006,
never came into force.16

[37] NEMA defines ‘environmental authorisation’, inter alia, as ‘the
authorisation by a competent authority of a listed activity or specified activity in
terms of this Act’. It defines a ‘competent authority’ in respect of a listed activity
as, ‘the organ of state charged by this Act with evaluating the environmental
impact of that activity and, where appropriate, with granting or refusing an
environmental authorisation in respect of that activity’.

[38] Section 24F(1)(a) underscores the need for an environmental authorisation
as a prerequisite for a listed activity. When Tendele’s first EMP was approved in
2007, s 24F of NEMA provided:
‘24F Offences relating to commencement or continuation of listed activities
(1) Notwithstanding any other Act, no person may–

15 Mineral Sands Resources fn 5 para 8.
16 ‘List of Activities and Competent Authorities identified in terms of sections 24 and 24D of the National
Environmental Management Act, 1998 GN R387, GG 28753, 21 April 2006’, items 7 and 8 of the Schedule.

(a)
commence an activity listed or specified in terms of s 24(2)(a) or (b) unless the
competent authority or the Minister responsible for mineral resources, as the case may be, has
granted an environmental authorisation for the activity. . . .’

[39] It is clear, simply from the above provisions of NEMA, that an
environmental authorisation granted by a competent authority under NEMA is
not the same thing as an EMP approved under the MPRDA. In Minister of
Mineral Resources v Stern (to which we were not referred),17 this Court assumed,
without deciding, that an environmental authorisation under NEMA is essentially
the same as an EMP. In my view, it is not. An environmental authorisation is
required for the commencement of an activity identified in a listing notice. The
impacts of listed activities on the environment are assessed in order ‘to give effect
to the general objectives of integrated environmental management’ in Chapter 5
of NEMA,18 which lays down rigorous processes for that assessment.

[40] Further, NEMA defines an ‘environmental management programme’ (a
NEMA EMP) as meaning ‘a programme required in terms of section 24’.19
Section 24N provides that the competent authority ‘may require the submission
of an environmental management programme before considering an application
for an environmental authorisation’. The main function of a NEMA EMP is to set
out the proposed management, mitigation, protection and remedial measures that
will be undertaken to address the environmental impacts of listed activities. It is
not the function of a NEMA EMP to determine the activities which an applicant
is authorised to undertake.20

17 Minister of Mineral Resources v Stern and Others fn 1 paras 44-45.
18 Section 24(1) of NEMA.
19 Section 1 of NEMA. This definition was inserted by s 1(g) of the National Environmental
Management Amendment Act 62 of 2008.
20 Mineral Sands Resources fn 5 para 170.

[41] By contrast, an EMP under the MPRDA is unrelated to a listed activity
envisaged in s 24(2)(a) of NEMA. The MPRDA defined an EMP as ‘an approved
environmental management programme contemplated in section 39’.  Section
39(1) of the MPRDA, which has been repealed with the coming into force of the
One Environmental System, required an applicant for a mining right to conduct
an EIA and submit an EMP. The requisites for an EIA and EMP were prescribed
in regulations 48-51 of the Mining Regulations.21 Section 23(5) of the MPRDA
provided that a mining right came into effect on the date on which the EMP was
approved in terms of s 39(5).

[42] Section 38(1) of the MPRDA required the holder of a mining right to
consider, investigate assess and communicate the impact of its mining on the
environment as contemplated in s 24(7) of NEMA; and to manage all
environmental impacts in accordance with its EMP. The main functions of an
EMP under the MPRDA, is to establish baseline information concerning the
affected environment; to investigate, assess and evaluate the impact of mining
operations on the environment; to develop an environmental awareness plan
describing the manner in which the applicant intended to inform its employees of
any environmental risks; and to describe the manner in which it intended to
modify, remedy, control or stop pollution or environmental degradation.22

21 The Mineral and Petroleum Resources Development Regulations published under ‘GN R527, GG 26275, 23
April 2004’.
22 Section 39(3) of the MPRDA provided:
‘An applicant who prepares an environmental management programme or an environmental management plan
must-
(a) establish baseline information concerning the affected environment to determine protection, remedial
measures and environmental management objectives;
(b) investigate, assess and evaluate the impact of his or her proposed prospecting or mining operations on-
(i) the environment;
(ii) the socio-economic conditions of any person who might be directly affected by the prospecting
or mining operation; and
(iii) any national estate referred to in section 3 (2) of the National Heritage Resources Act, 1999 (Act
25 of 1999), with the exception of the national estate contemplated in section 3 (2) (i) (vi) and
(vii) of that Act;
(c) develop an environmental awareness plan describing the manner in which the applicant intends to inform
his or her employees of any environmental risks which may result from their work in the manner in which
the risks must be dealt with in order to avoid pollution or the degradation of the environment; and

[43] The distinction drawn between an environmental authorisation in terms of
NEMA and an EMP under the MPRDA in the cases, is thus not surprising. As
already stated, it was rightly asserted in Mineral Sands Resources,23 that mining
typically involves listed activities and therefore the holder of a mining right
requires environmental authorisation in terms of s 24 of NEMA. Likewise, the
court in Mining and Environmental Justice Community Network SA,24 followed
the integrative approach to the protection of the environment, enjoined by NEMA.
In an application to review and set aside a decision permitting coal mining in a
protected wetlands area, it held that in order for a party to conduct mining
activities, it must obtain a mining right and approval of an EMP in terms of the
MPRDA, as well as environmental authorisation for listed activities in terms of
s 24 of NEMA.25

[44] Solely for these reasons, the high court’s finding that ‘the environmental
impacts of mining were regulated exclusively under the MPRDA (2002) in terms
of approved EMPs’, is erroneous. First, it is at odds with the plain wording of the
provisions of both the MPRDA and NEMA, in particular the requirements of
NEMA concerning an environmental authorisation, referred to in paragraphs 28-
31 above, as well as the general objectives of integrated environmental
management laid down in Chapter 5 thereof. Second, Maccsand makes it clear
that the MPRDA cannot be read to override the applicability or requirements of
other laws.26 Indeed, and as stated in Maccsand, s 23(6) of the MPRDA expressly
renders a mining right granted under that Act subject to ‘any relevant law’.27

(d) describe the manner in which he or she intends to-
(i) modify, remedy, control or stop any action, activity or process which causes pollution or
environmental degradation;
(ii) contain or remedy the cause of pollution or degradation and migration of pollutants; and comply
with any prescribed waste standard or management standards or practices.’
23 Mineral Sands Resources fn 5 paras 7, 8 and 17.
24 Mining and Environmental Justice Community Network of South Africa and Others v Minister of Environmental
Affairs and Others [2019] 1 All SA 491 (GP).
25 Mining and Environmental Justice Community Network of SA fn 22 para 4.
26 Maccsand fn 8 para 45.
27 Maccsand fn 8 para 44. Section 23(6) provides:

[45] There is no provision in the MPRDA or NEMA which suggests that
decision-making in relation to the environmental impacts of mining is left to
functionaries of the DMR. The converse is true: s 38 of the MPRDA, prior to its
repeal with effect from 8 December 2014, enjoined the holder of a mining right
at all times to give effect to the general objectives of integrated environmental
management laid down in Chapter 5 of NEMA; and to consider, investigate assess
and communicate the impact of its mining on the environment as contemplated in
s 24(7) of NEMA. The very purpose of Chapter 5 – containing the prohibition
against the commencement of listed activities without environmental
authorisation – is the integrated environmental management of activities. Section
24(1) of NEMA states, in terms, that the purpose of the identification of listed
activities is to give effect to the general objectives of integrated environmental
management laid down in Chapter 5.

[46]  The mandatory objectives of integrated environmental management in
Chapter 5 of NEMA plainly apply to mining and related activities. These include
the integration of the s 2 principles into all decisions that may significantly affect
the environment; identifying and evaluating actual and potential impacts on the
environment and options for mitigation of activities; and ensuring that the effects
of activities on the environment are adequately considered before actions are
taken.28

‘A mining right is subject to this Act, any relevant law, the terms and conditions stated in the right and the
prescribed terms and conditions and is valid for the period specified in the right, which period may not exceed 30
years.’
28 Section 23 of NEMA provides:
‘(1) The purpose of this chapter is to promote the application of appropriate environmental management tools in
order to ensure the integrated environmental management of activities,
(2)    The general objective of integrated environmental management is to–
(a)    promote the integration of the principles of environmental management set out in section 2 into the making
of all decisions which may have a significant effect on the environment;
(b) identify, predict and evaluate the actual and potential impact on the environment, socio-economic conditions
and cultural heritage, the risks and consequences and alternatives and options for mitigation of activities, with a
view to minimising negative impacts, maximising benefits, and promoting compliance with the principles of
environmental management set out in section 2;

[47] What is more, s 24(7) of NEMA, to which the holder of a mining right is
expressly subject, provides that the procedures for the investigation, assessment
and communication of the potential impact of activities must, at a minimum,
provide for ‘co-ordination and co-operation between organs of state in the
consideration of assessments where an activity falls under the jurisdiction of more
than one organ of state’.29 This is a powerful indicator that the MPRDA does not
cover the environmental impacts of mining; neither does it leave decision-making
on those impacts solely to functionaries of the DMR.

[48] That the MPRDA does not cover the field, is made even clearer in
ss 24(8)(a), 24K and 24L of NEMA. These provisions were inserted by s 2 of the
2008 NEMA Amendment Act30 (ie after the enactment of the MPRDA) and came
into effect on 1 May 2009. Section 24(8)(a) of NEMA provides that
authorisations obtained under any other law (such as the MPRDA) for an activity
listed in terms of NEMA, do not absolve an applicant from obtaining
authorisation under NEMA:
‘Authorisations obtained under any other law for an activity listed or specified in terms of this
Act does not absolve the applicant from obtaining authorisation under this Act unless an
authorisation has been granted in the manner contemplated in section 24L.’

[49] Section 24L(1) of NEMA provides for the alignment of environmental
authorisations. More specifically, it states that where a listed activity
contemplated in s 24 of NEMA is also regulated in terms of another law, the

(c)
ensure that the effects of activities on the environment receive adequate consideration before actions are
taken in connection with them;
(d)
ensure adequate and appropriate opportunity for public participation in decisions that may affect the
environment;
(e)
ensure the consideration of environmental attributes in management and decision-making which may
have a significant effect on the environment; and
(f)
identify and employ the modes of environmental management best suited to ensuring that particular
activities pursued in accordance with the principles of environmental management set out in section 2.’
29 Section 24(7)(g) of NEMA.
30 National Environmental Management Amendment Act 62 of 2008.

authority empowered under that other law to authorise that activity and the
competent authority authorised to issue an environmental authorisation under
NEMA, may exercise their respective powers jointly by issuing separate
authorisations or an integrated environmental authorisation.31 This, however,
does not remove the requirement of an environmental authorisation under NEMA
to conduct a listed activity.32 In terms of s 24L(4), a competent authority
empowered to issue an environmental authorisation under NEMA may regard an
authorisation in terms of any other legislation that meets the requirements of
NEMA, as an environmental authorisation under NEMA.

[50] Section 24K(1) of NEMA authorises the Environment Minister or an MEC
responsible for environmental affairs to ‘consult with any organ of state
responsible for administering legislation relating to any aspect of an activity that
also requires environmental authorisation under [NEMA] in order to coordinate
the respective requirements of such legislation and to avoid duplication’.

[51] What all of this shows, is that the provisions of NEMA apply alongside
those of the MPRDA relating to mining rights and EMPs, and there is no basis to
restrict the application of Chapter 5 of NEMA, as Tendele seeks to do. The two
laws serve different purposes within the competence of the authorities responsible
for their administration. Maccsand illustrates the point.33 A company, Maccsand,
had been granted a mining right to mine under the MPRDA. In terms of that right
it was authorised to enter and bring on to the relevant land, equipment and

31 Section 24L of NEMA provides:
‘Alignment of environmental authorisations-
(1) If the carrying out of a listed activity or specified activity contemplated in section 24 it is also regulated
in terms of another law or a specific environmental management Act, the authority empowered under
that other law or specific environmental management Act to authorise that activity in the competent
authority empowered under Chapter 5 to issue an environmental authorisation in respect of that activity
may exercise their respective powers jointly by issuing–
(a) separate authorisations; or
(b) an integrated environmental authorisation.
32 City of Cape Town v Maccsand (Pty) Ltd and Others 2010 (6) SA 63 (WCC) paras 10 and 11.
33  Maccsand fn 8.

materials to construct surface, underground or undersea infrastructure required
for the purposes of mining. Maccsand contended that because it had various rights
under the MPRDA, it did not need to obtain planning consent by the City of Cape
Town under the Land Use Planning Ordinance 15 of 1985. Rejecting this
contention, the Constitutional Court said:
‘If it is accepted, as it should be, that LUPO regulates municipal land planning and that, as a
matter of fact, it applies to land which is the subject matter of these proceedings, then it cannot
be assumed that the mere granting of a mining right cancels out LUPO’s application. There is
nothing in the MPRDA suggesting that LUPO will cease to apply to land upon the granting of
a mining right or permit. By contrast, section 23(6) of the MPRDA proclaims that a mining
right granted in terms of that Act is subject to it and other relevant laws.’34

[52] Moreover, the high court’s interpretation is inconsistent with the
constitutional injunction to interpret statutes in a way that gives the right to
protection of the environment its fullest possible effect. The principles in s 2 of
NEMA must guide the interpretation, administration and implementation of
NEMA and any other law concerned with environmental protection or
management, such as the MPRDA: not the other way around. Otherwise
construed, NEMA is deprived of direct force in relation to mining activities, and
effectively sidestepped.  Its mandatory principles would then only be applied
insofar as they are reflected in the MPRDA and the separate environmental
authorisation required for listed activities in s 24(2) of NEMA, would be rendered
nugatory.

[53] This interpretation, contrary to Tendele’s assertion and the high court’s
finding, does not result in a ‘duplication’ of regulatory functions, nor ‘competing

34 Maccsand fn 8 para 44, affirmed recently in Maledu and Others v Itereleng Bakgatla Mineral Resources (Pty)
Ltd and Another [2018] ZACC 41; 2019 (2) SA 1 (CC) para 106: ‘This conclusion also finds support in this Court's
decision in Maccsand. In Maccsand, this Court held that the exercise of a mining right was subject to any other
laws bearing on such a right. The MPRDA was not read to override the applicability or requirements of other
statutes, such as the Land Use Planning Ordinance, that may impact upon mining activity’.

and contradictory but mandatory directions’ by regulatory authorities. As shown
above, s 24K(1) of NEMA refutes any duplication argument. In any event a
similar argument was rejected in Maccsand:35
‘Another criticism levelled at the finding of the Supreme Court of Appeal by Maccsand and the
Minister for Mineral Resources was that, by endorsing a duplication of functions, the Court
enabled the local sphere to veto decisions of the national sphere on a matter that falls within
the exclusive competence of the national sphere. At face value this argument is attractive but it
lacks substance. The Constitution allocates powers to three spheres of government in
accordance with the functional vision of what is appropriate to each sphere. But because these
powers are not contained in hermetically sealed compartments, sometimes the exercise of
powers by two spheres may result in an overlap. When this happens, neither sphere is intruding
into the functional area of another. Each sphere would be exercising power within its own
competence. It is in this context that the Constitution obliges the spheres of government to
cooperate with one another in mutual trust in good faith, and to coordinate actions taken with
one another. The fact that in this case mining cannot take place until the land in question is
appropriately rezoned is therefore permissible in our constitutional order. It is proper for one
sphere of government to take a decision whose implementation may not take place until consent
is granted by another sphere, within whose area of jurisdiction the decision is to be executed.
If consent is, however, refused it does not mean that the first decision is vetoed. The authority
from whom consent was sought would have exercised its power, which does not extend to the
power of the other functionary. This is so in spite of the fact that the effect of the refusal in
those circumstances would be that the first decision cannot be put into operation. This difficulty
may be resolved through cooperation between the two organs of state, failing which, the refusal
may be challenged on review.’

[54] In Fuel Retailers,36 the issue was whether environmental authorities had
considered the social, economic and environmental impacts of constructing a
filling station. In resisting an application to review and set aside its decision
authorising the construction of the filling station, the relevant government
department contended that issues of need and desirability had been considered by

35 Maccsand fn 8 paras 47-48; Telkom SA SOC Limited v City of Cape Town and Another [2020] ZACC 15; 2020
(10) BCLR 1283 (CC) para 35.
36 Fuel Retailers fn 10 para 86.

the local authority when it decided the application to rezone the property for the
purpose of constructing the filling station.  Therefore, so it was contended, the
local authority did not have to reassess those issues. The Constitutional Court
rejected this contention and held that each functionary operates within the purpose
and ambit of its own enabling statutory provisions when taking administrative
action. Thus, the satisfaction of the requirements of a specific section or Act does
not equate to satisfaction of a similar requirement in a different section or Act.
The court said:
‘The environmental authorities assumed that the duty to consider need and desirability in the
context of the Ordinance imposes the same obligation as the duty to consider the social,
economic and environmental impact of a proposed development as required by the provisions
of NEMA. They were wrong in that assumption.’

[55] It follows that the decision to grant a mining right and approve an EMP in
terms of the MPRDA, may not be implemented without an environmental
authorisation, if the holder of that right and EMP undertakes a listed activity as
envisaged in NEMA. The presumption against the retrospective operation of
statutes simply does not arise: the requirement of an environmental authorisation
under NEMA does not take away or impair Tendele’s mining right or EMP under
the MPRDA.37

[56] This is confirmed by the language of the transitional provisions themselves.
The relevant provisions of s 12 of the 2008 NEMA Amendment Act, as amended
by Act 25 of 2014 provide:
‘(2) An application for authorisation of an activity that is submitted in terms of Chapter 5 of
[NEMA] and that is pending when this Act takes effect must, despite the amendment of
[NEMA] by this Act, be dispensed with in terms of Chapter 5 of [NEMA] as if Chapter 5 had
not been amended.

37 Unitrans Passenger (Pty) Ltd t/a Greyhound Coach Lines v Chairman, National Transport Commission and
Others; Transnet (Autonet Division) v Chairman National Transport Commission and Others 1999 (4) SA 1
(SCA) para 12.

…
(4) An environmental management plan or programme approved in terms of the [MPRDA]
immediately before the date on which this Act came into operation must be regarded as having
been approved in terms of [NEMA] as amended by this Act.’

[57] Three points should be made. First, the transitional provisions do not
dispense with an environmental authorisation as a prerequisite for undertaking a
listed activity: the opposite is true. Second, an EMP approved under the MPRDA
does not have the status of an environmental authorisation under NEMA. That
much is clear from the definitions in NEMA.38 And third, s 12(4) means no more
than that an EMP approved under the MPRDA must be accepted as an EMP
issued in terms of NEMA. An EMP is but one of the prescribed environmental
management instruments referred to in s 24(5) of NEMA. Put differently, the
introduction of the One Environmental System with effect from 8 December
2014, did not retroactively deprive Tendele of its EMPs approved under the
MPRDA.

The Minister’s failure to act: a relevant consideration?
[58] In support of its finding that Tendele’s EMPs were valid under the
transitional provisions, the high court referred to the Environment Minister’s
power under s 12(5) of the 2008 NEMA Amendment Act to direct the holder of
an old order mining right to upgrade an EMP to address any deficiencies that may
lead to unacceptable environmental consequences. The court said:
‘To date the Minister has not acted against Tendele in terms of s 12(5) of the NEMA
Amendment Act, 2008. This suggests to me that the Minister is thus far satisfied about
Tendele’s approved EMPs and the manner in which it conducts its mining operations at
Somkhele . . .

38 An ‘environmental authorisation’ includes the authorisation by a competent authority of a listed activity or
specified activity in terms of NEMA. An ‘environmental management programme’ means a programme required
in terms of s 24 of NEMA.

It seems to me that the Minister is well aware of Tendele’s operations at Somkhele and that
they are conducted in terms of approved EMPs. He also seems to be satisfied that such EMPs
adequately address the environmental impacts of such operations at Somkhele. If the Minister
was not so satisfied he would not have granted Tendele further mining rights as he did in 2016
to expand its mining operations in Reserve 3.’

[59] The high court erred. It is impermissible to interpret a statute according to
the conduct or practice of a government functionary. The Constitutional Court put
it thus:39
‘Missing from this formulation is any explicit mention of a further fundamental contextual
change, that from legislative supremacy to constitutional democracy. Why should a unilateral
practice of one part of the executive arm of government play a role in the determination of the
reasonable meaning to be given to a statutory provision? It might conceivably be justified where
the practice is evidence of an impartial application of a custom recognised by all concerned,
but not where the practice is unilaterally established by one of the litigating parties. In those
circumstances it is difficult to see what advantage evidence of the unilateral practice will have
for the objective and independent interpretation by the courts of the meaning of legislation, in
accordance with constitutionally compliant precepts. It is best avoided.’

[60] For the above reasons, and having regard to the language, context and
purposes of the relevant statutory provisions, 40 I have come to the conclusion that
environmental authorisation to conduct a listed activity, in terms of s 24(2) of
NEMA, is a requirement for mining. Consequently, Tendele’s mining operations
are unlawful. The appropriate relief is set out below.

Land use approvals

39 Marshall and Others v Commission for the South African Revenue Service [2018] ZACC 11; 2018 (7) BCLR
830 (CC) para 10.
40 Natal Joint Municipal Pension Fund v Endumeni Municipality [2012] ZASCA 13; 2012 (4) SA 593 (SCA) para
18, approved in Airports Company South Africa v Big Five Duty-Free (Pty) Ltd [2018] ZACC 33; 2019 (5) SA1
(CC) para 9.

[61] The appellants’ case that Tendele’s mining activities are unlawful because
it has not obtained municipal approval for its mining operations, may be outlined
as follows. Tendele does not have municipal approval to develop the land on
which it conducts mining operations, as contemplated in s 38 of the KwaZulu-
Natal Planning and Development Act 6 of 2008 (the KZN Planning Act). Section
48(3) of that Act prohibits any development without municipal approval. Tendele
also does not have permission to use the land (Reserve No 3) for ‘mining
purposes’ as envisaged in the Spatial Planning and Land Use Management Act
16 of 2013 (SPLUMA). It also requires approval of a ‘mining operation’ as
defined in Schedule 2 to the Mtubatuba SPLUMA By-Law of January 2017 (The
Mtubatuba By-Law).

[62] In this Court the appellants accepted that the KZN Planning Act which
came into force on 1 May 2010, and SPLUMA, which commenced on 1 July
2015, do not apply retrospectively. Accordingly, mining operations by Tendele
prior to the commencement of these statutes are lawful. This however, so it was
contended, does not apply to new mining which may be conducted after the
commencement of the KZN Planning Act and SPLUMA, in terms of the mining
right granted to Tendele in 2016.

[63] Section 38(1) KZN Planning Act provides:
‘The development of land situated outside the area of the scheme may only occur to the extent that it
has been approved by the municipality in whose area the land is situated.’
Section 38(3) defines ‘development’ as follows:
‘[T]he carrying out of building, construction, engineering, mining or other operations on, under
or over any land, and a material change to the existing use of any building or land without
subdivision.’

[64] It is evident from this definition that the KZN Planning Act was not
intended to regulate existing mining. Tendele’s mining operations do not fall

within the definition of development in s 38(3), since it was already conducting
mining operations on Reserve No 3 when the KZN Planning Act came into force.
That mining does not constitute a material change to the existing use of land.
[65] Aside from this, it was not the appellants’ case that the exercise of the
mining right granted to Tendele in 2016 in respect of Areas 4 and 5, would
constitute a material change to the existing use of land. Had such a case been
pleaded, Tendele would have been able to put up evidence to show that the mining
which is to take place in terms of the Areas 4 and 5 right, does not constitute a
new use of land, but merely an extension of the existing use of the same land, ie
mining on another portion of Reserve No 3; or that future mining is related to the
mining that has been conducted at the mine to date.

[66] The same applies to the attack based on SPLUMA. It is unsustainable, both
on the pleadings and a proper construction of the relevant statutory provisions. In
terms of s 26(2), land may be used only for the purposes permitted by a land use
scheme, by a town planning scheme (until such a scheme is replaced by a land
use scheme), ‘or in terms of subsection (3)’. Section 26(3) provides for the
continuation, after the commencement of SPLUMA, of certain land uses in
specific circumstances:
‘Where no town planning or land use scheme applies to a piece of land, before a land use
scheme is approved in terms of this Act, such land may be used only for the purposes listed in
Schedule 2 to this Act and for which such land was lawfully used or could lawfully have been
used immediately before the commencement of this Act.’
One of the land use purposes listed in Schedule 2 is ‘mining purposes’, defined
in the Schedule as, ‘purposes normally or otherwise reasonably associated with
the use of land for mining’.

[67] Self-evidently, the purpose of s 26(3) is to maintain the existing land use
regime applicable to land, in respect of which no town planning scheme or land

use scheme applied when SPLUMA came into force, until a land use scheme is
approved in terms of SPLUMA. It achieves this by permitting the use of land for
certain purposes to continue where such land was lawfully being used for that
purpose immediately before commencement of SPLUMA. It follows that the
provisions of the Mtubatuba By-Law cannot trump the provisions of SPLUMA.
Tendele’s mining operations are not in breach of SPLUMA or the Mtubatuba By-
Law.

Waste Management
[68] The founding affidavit states that there are massive stockpiles of waste rock
at the mine and that Tendele’s mining activities result in liquid coal waste and
coal sludge or slurry. The process of crushing and washing coal produces liquid
waste along with huge stockpiles of solid waste. Attached to the affidavit are
photographs depicting huge mining dumps and rock dumps. The appellants
alleged that the waste produced by Tendele falls within the definition of
‘hazardous waste’ in Schedule 3 to the Waste Act, which includes ‘residue
stockpiles’ and ‘wastes from the pyrolytic treatment of coal’.41  The concept
‘residue stockpile’ includes waste derived from a mining operation and which is
stockpiled, and wastes resulting from mining.42 Tendele does not have a waste
management licence as required by the Waste Act and is therefore mining
illegally.

[69]  Section 20 of the Waste Act provides that no person may commence,
undertake or conduct a waste management activity, except in accordance with a

41 In Schedule 3 to the Waste Act, ‘“hazardous waste” means any waste that contains organic or inorganic
elements or compounds that may, owing to the inherent physical, chemical or toxicological characteristics of that
waste, have a detrimental impact on health and the environment and includes hazardous substances, materials or
objects within business waste, residue deposits and residue stockpiles as outlined. . . ’.
42 In Schedule 3 to the Waste Act, ‘“residue stockpile” means any debris, discard, tailings, slimes, screening,
slurry, waste rock, foundry sand, mineral processing plant waste, ash or any other product derived from or
incidental to a mining operation and which is stockpiled, stored or accumulated within the mining area for potential
re-use, or which is disposed of, by the holder of a mining right, mining permit or, production right or an old order
right, including historic mines and dumps created before the implementation of this Act’.

waste management licence or the requirements or standards determined in terms
of s 19(3). A ‘waste management activity’ is defined as an activity listed in
Schedule 1 or published by notice in the Gazette under s 19.

[70] In terms of s 19 of the Waste Act, the Environment Minister on 29
November 2013, published a list of waste management activities that have or are
likely to have a detrimental effect on the environment (the 2013 listing notice).
Regulation 7(1) of the 2013 listing notice states:
‘A person who lawfully conducts a waste management activity listed in this schedule on the
date of the coming into effect of this notice may continue with the waste management activity
until such time that the Minister by notice in the Gazette calls upon such person to apply for a
waste management licence.’

[71] It was argued on behalf of the appellants that the high court’s conclusion
that Tendele’s conduct was lawful because the Minister had not called upon it to
apply for a waste management licence, was wrong because it incorrectly ascribed
to the Minister the power to determine the legality of Tendele’s conduct. This, so
it was argued, undermines the judicial function: the courts should determine the
legality of conduct. It was also argued that regulation 7(1) cannot, in effect,
immunise Tendele against obtaining a waste management licence, especially
where this occurs due to the inaction of the Minister.

[72] These arguments, however, do not assist the appellants, for two reasons.
The first is that a notice of waste management activities in terms of s 19(1) of the
Waste Act, ‘may contain transitional and other special arrangements in respect of
waste management activities that are carried out at the time of their listing’.43
Regulation 7(1) is thus specifically authorised. The second is that the appellants
have not challenged the constitutionality of regulation 7(1). This regulation is not

43 Section 19(3)(c) of the Waste Act.

void or non-existent, but exists as a fact and remains lawful until it is set aside.44
The appellants have not established that Tendele is mining unlawfully because it
does not have a waste management licence.

Relocation of traditional graves
[73] Section 35 of the KZN Heritage Act provides that before any grave may be
damaged, altered, exhumed or removed, prior written consent must be obtained
from AMAFA Heritage Council. The Council must be satisfied that an applicant
has made concerted efforts to engage the relevant communities affected, and that
those communities have agreed to the relocation of graves.45

[74] Ms Shiela Berry, a trustee of the first appellant, in her affidavit states that
when Tendele started mining, there were many graves on the mining site which
were exhumed and moved to another graveyard with no regard for the Zulu
people’s deep respect for their ancestors. This graveyard is situated on a slope,
and some of the graves have been undercut by rain and are slumping. In some of
the graves body parts can be seen.

[75] Mr Du Preez states that Tendele ‘did not appreciate the process that the
mine was required to follow in order to relocate traditional graves’, and that its
failure to obtain authorisation ‘was due to a bona fide oversight’. This is
improbable. On its own version, Tendele’s consultant, Groundwater Consulting

44 Oudekraal Estates (Pty) Ltd v City of Cape Town and Others 2004 (6) SA 222 (SCA) para 26; Merafong Local
Municipality v AngloGold Ashanti Limited [2016] ZACC 35; 2017(2) SA 211 (CC) para 36.
45 Section 35 of the KZN Heritage Act provides:
‘General Protection: Traditional burial places –
35.(1)    No grave–
(a) not otherwise protected by this Act; and
(b) not located in a formal cemetery managed or administered by a local authority,
may be damaged, altered, exhumed, removed from its original position, or otherwise disturbed without the
prior written approval of the Council having been obtained on written application to the Council.
(2) The Council may only issue written approval once the Council is satisfied that–
(a) the applicant has made a concerted effort to consult with communities and individuals who by tradition may
have an interest in the grave; and
(b) the applicant and the relevant communities or individuals have reached agreement regarding the grave.’

Services (GCS), had advised it in 2007 already, that grave relocation needed to
be dealt with separately from a heritage impact assessment. Tendele engaged
AMAFA Heritage Council only in 2017 – some 10 years later. In its report to
Tendele in December 2007, GCS described the importance of gravesites to the
community as follows:
‘Many of the local residents place great religious significance on gravesites. This strong
reverence for graves emerges from the belief that the spirit (ithongo or moya, in Zulu) of
individual persons continue to maintain an active interest in and affect the living (mostly
relatives). Spirits of deceased relatives are referred to as ancestors (ukhokho, in Zulu) and much
of their interactions with their living descendants take place with reference to their graves.
Consequently, graves have developed into sites of particular social significance and not only
stand as symbols of the relationship between the living and the dead, but also represent a locale
where these relationships can be articulated and find expression. It is largely the practice of
ancestor worship that has led graves to acquire a particularly strong cultural significance that
they have. Residents in the area regard ancestor worship as an ancient religious practice.’

[76] It appears from the answering papers that prior to consulting AMAFA
Heritage Council, Tendele had entered into detailed agreements with members of
the community for the relocation of graves. In terms of this agreement, the
relatives of deceased persons were paid an amount of R8 500 ‘in respect of all
Family Graves’, located in the mining area. The agreement states that ‘“all Family
Graves” means the total of all graves [of relatives of the person concluding the
agreement] located at the Premises’.

[77] The answering affidavit states that all relocations of traditional graves have
taken place in consultation with the affected families and communities, and that
Tendele has engaged in consultations with AMAFA Heritage Council to ensure
that its conduct in relation to traditional graves complies with the law. At a
meeting with the Council on 8 May 2017, Tendele gave an undertaking that in
future, no graves would be exhumed or relocated without the necessary permits.

[78] On the strength of this undertaking and Tendele’s engagements with
AMAFA Heritage Council, the high court stated that the Council ‘would have
said something regarding Tendele’s conduct if it was not satisfied with the manner
in which traditional graves were being relocated’. It held that the appellants failed
to make out a proper case for an interdict.

[79] Whether the relocation of graves is unlawful cannot be decided by
reference to the view taken by the AMAFA Heritage Council. It is common
ground that Tendele has removed or altered traditional graves in violation of the
KZN Heritage Act. That plainly, was unlawful. It is conduct grossly inconsistent
with the Constitution, and invalid.

[80] Given the particular circumstances of this case, it is my considered view
that although the appellants asked for an interdict in the notice of motion, a
declaratory order would constitute appropriate relief.46 This order should not be
suspended, since Tendele does not conduct unplanned mining. It must know in
advance which graves need to be relocated and it has demonstrated that it is able
to comply with the provisions of the KZN Heritage Act.

Relief
[81] The appellants sought an order interdicting Tendele from carrying on with
any mining operations in Areas 1, 2 and 3 on Reserve No 3; the KwaQubuka and
Luhlanga areas on Reserve No 3; and one part of the remainder of Reserve No 3,
‘until further order’ of the high court. Although the appellants did not ask for a
declaratory order, such an order would be just and equitable in the circumstances,
for the reasons stated below.

46 Economic Freedom Fighters and Others v Speaker of the National Assembly and Another [2017] ZACC 47;
2018 (2) SA 571 (CC) para 211.

[82] Section 172(1)(a) of the Constitution applies. It provides that conduct
inconsistent with the Constitution must be declared invalid. The court has no
discretion. In terms of s 172(1)(b) the court has a discretion to grant just and
equitable relief, either independently or together with a declaratory order.47 The
power in s 172(1)(b) to make any order that is just and equitable is not limited to
declarations of invalidity; and ‘is so wide and flexible that it allows Courts to
formulate an order that does not follow prayers in the notice of motion’.48

[83] In the exercise of this wide remedial power, the Constitutional Court has
highlighted the need for courts to be pragmatic in crafting just and equitable
remedies.49 A pragmatic approach that grants effective relief – that upholds,
enhances and vindicates the underlying values and rights entrenched in the
Constitution50 – and which will allow Tendele, the primary employer in
Mtubatuba, to continue mining while it brings itself into compliance with NEMA,
is called for in this case.

[84] If Tendele’s mining operations are brought to a grinding halt, this would
have catastrophic consequences. The mine is the primary driver of economic
activity in Mtubatuba. It employs over 1000 people and 83% of its employees live
in the Mpukunyoni area surrounding the mine. According to the Integrated
Development Plan of the Mtubatuba Municipality, mining is one of the major
employment sectors in the municipality; and the unemployment rate in the area

47 Section 172(1) of the Constitution provides:
‘172  Powers of courts in constitutional matters
(1) When deciding a constitutional matter within its power, a court-
(a)   must declare that any law or conduct that is inconsistent with the Constitution is invalid to the extent of its
inconsistency; and
(b)   may make any order that is just and equitable, including-

(i)   an order limiting the retrospective effect of the declaration of invalidity; and
(ii)   an order suspending the declaration of invalidity for any period and on any conditions, to allow the
competent authority to correct the defect.’
48 Economic Freedom Fighters fn 46 paras 210- 211.
49 Electoral Commission v Mhlope and Others [2016] ZACC 15; 2016 (5) SA 1 (CC) para 132.
50 Fose v Minister of Safety and Security 1997 (3) SA 786 (CC) para 34.

which previously was at 59.7%, had improved to 39% in 2011, as a result of the
mining operations at Somkhele.

[85] The Mpukunyoni amici submitted that if mining operations were to stop,
the South African anthracite market would be wiped out, which would have a
knock-on effect on the ferrochrome industry that employs more than 20,000
people and is a major exporter in the South African economy. Tendele has also
made significant investments in the development of the area, which include the
provision of apprenticeships, training in farming activities, adult basic education
and training, bursaries and student teachers. Between December 2006 and
December 2016, Tendele spent R719 million on local community employee
salaries; R54 million on community projects in accordance with approved social
and labour plans annexed to the Tendele mining rights; and R300 million on
procuring services from community-based black economic empowerment
companies.

[86] The termination of mining operations, even temporarily, would be the
death knell of the Mtubatuba economy and would result in the loss of the
livelihood of the Mpukunyoni community, together with significant benefits
described above. For these reasons, Tendele and the Mpukunyoni amici have
asked this Court to grant Tendele an opportunity to regularise its position in
relation to the requisite statutory approvals.

Costs
[87] The high court stated that there was ‘no reason why costs should not follow
the result’ and ordered the appellants to pay Tendele’s costs. Tendele has since
abandoned the costs order. However, a notice of abandonment does not overturn
the judgment of the court a quo, which remains on the public record and is
available to persons researching or seeking a direction on costs in an

environmental law dispute. There is no public record that the costs order was
abandoned.

[88]  It is trite that a judgment stands unless it is rescinded, or set aside by an
appellate court.  The abandonment of a judgment is a unilateral act which operates
ex nunc and not ex tunc.  It precludes the party who has abandoned its rights under
the judgment from enforcing it, but the judgment still exists with all its intended
legal consequences.51

[89] An award of costs involves the exercise of a discretion. It is a settled
principle that an appellate court does not lightly interfere with the exercise of a
true discretion, unless it is shown that the discretion was not exercised judicially,
more specifically, that the decision could not reasonably have been reached by a
court properly directing itself to the relevant facts and principles.52 The CER
submitted that the high court did not exercise its discretion judicially when it
ordered the appellants to pay Tendele’s costs, and that the costs order should be
overturned whatever the outcome of the appeal.

[90] The costs order not only has an obvious chilling effect on the enforcement
of a constitutional right,53 but the high court also disregarded the protection
against an adverse costs order contained in NEMA itself. Section 32(2) states:
‘A court may decide not to award costs against the person who, or group of persons which, fails
to secure the relief sought in respect of any breach or threatened breach of any provision of this
Act, including a principle contained in Chapter 1, or of any provision of a specific
environmental management Act, or any other statutory provision concerned with the protection
of the environment or the use of natural resources, if the court is of the opinion that the person
or group of persons acted reasonably out of a concern for the public interest or in the interest

51 Engen Petroleum Ltd v Paargen Erf 116 (Pty) Ltd t/a Impala Motors and Others [2018] ZANWHC 27 para 9.
52 Public Protector v South African Reserve Bank [2019] ZACC 29; 2019 (9) BCLR 1113 (CC) para 107.
53 Biowatch Trust v Registrar Genetic Resources and Others [2009] ZACC 14; 2009 (6) SA 232 (CC) para 21.

of protecting the environment and had made due efforts to use other means reasonably available
for obtaining the relief sought.’

[91] It is clear from the founding papers that the appellants were seeking to
enforce the right to have the environment protected, contained in s 24 of the
Constitution, as well as the provisions of NEMA and various other environmental
management statutes. The application for the interdict was brought in the public
interest, the interests of the people residing in the vicinity of the mine affected by
mining operations and in the interests of the appellants’ members, as envisaged
in s 38 of the Constitution.

[92] In the light of the facts and principles outlined above, the order directing
the appellants to pay Tendele’s costs is not one that could reasonably have been
made. The high court failed to exercise its discretion judicially and the costs order
must be set aside.

[93] In the result, I would make the following order:
The appeal succeeds with costs, including the costs of two counsel.
The order of the high court is set aside and replaced with the following:
‘2.1 It is declared that the commencement or continuation of mining operations
by the first respondent on the properties listed below (the properties) is
unlawful and unconstitutional, unless and until it has been granted an
environmental authorisation in terms of the National Environmental
Management Act 107 of 1998 (NEMA), to undertake the relevant listed
activities contained in the List of Activities and Competent Authorities
Identified in terms of Sections 24(2) and 24D of NEMA, published under
Government Notices R983, 984 and 985, in Government Gazette 38282 of 4
December 2014:

(a)
Area 1 on Reserve No 3 (Somkhele) No 15822, measuring 660.5321
hectares as described in the mining right dated 22 June 2007;
(b)
Areas 2 and 3 on Reserve No 3 (Somkhele) No 15822, measuring
779.8719 hectares as described in the mining right dated 30 March
2011;
(c)
The KwaQubuka and Luhlanga areas on Reserve No 3, measuring
706.0166 hectares as described in the mining right dated 8 March
2013;
(d)
Areas 4 and 5 on part of the remainder of Reserve No 3 No 15822,
in extent to 21233.0525 hectares as described in the mining right
dated 26 October 2016.
2.2 It is declared that the first respondent’s commencement or continuation of
mining operations on the properties is unlawful and unconstitutional, unless
and until it has obtained written approval in terms of s 35 of the KwaZulu-
Natal Heritage Act 4 of 2008 to damage, alter, exhume or remove any
traditional graves from their original positions.
2.3 The order in paragraph 2.1 above is suspended for a period of 12 months to
enable the first respondent to obtain the requisite environmental
authorisation. In the event that the first respondent does not obtain that
authorisation within the said period, it shall be entitled to apply to this Court
for an extension of the period, setting out the steps taken to obtain
environmental authorisation; the status of that application; and why a further
suspension of the order in paragraph 2.1 is necessary.
2.4 The first respondent is ordered to pay the costs of the application, including
the costs of two counsel.’

__________________
A SCHIPPERS

JUDGE OF APPEAL

Ponnan JA (Plasket and Nicholls JJA and Ledwaba AJA concurring):
[94] Motion proceedings, said Harms DP in National Director of Public
Prosecutions v Zuma, ‘are all about the resolution of legal issues based on
common cause facts’.54 He added:
‘Unless the circumstances are special they cannot be used to resolve factual issues because they
are not designed to determine probabilities. It is well established under the Plascon-Evans rule
that where in motion proceedings disputes of fact arise on the affidavits, a final order can be
granted only if the facts averred in the applicant's (Mr Zuma’s) affidavits, which have been
admitted by the respondent (the NDPP), together with the facts alleged by the latter, justify
such order. It may be different if the respondent’s version consists of bald or uncreditworthy
denials, raises fictitious disputes of fact, is palpably implausible, far-fetched or so clearly
untenable that the court is justified in rejecting them merely on the papers.’

[95] In motion proceedings, the affidavits constitute both the pleadings and the
evidence.55 The issues and averments in support of a party’s case should appear
clearly therefrom.56 They serve, not just to define the issues between the parties,
but also to place the essential evidence before the court. An applicant must
therefore raise in the founding affidavit the issues as well as the evidence upon
which it relies to discharge the onus of proof resting on it.

[96] It is impermissible for an applicant in motion proceedings to make out a
new case in reply. As Cloete JA pointed out in Minister of Land Affairs and
Agriculture v D & F Wevell Trust, ‘[t]he reason is manifest ─ the other party may
well be prejudiced because evidence may have been available to it to refute the

54 National Director of Public Prosecutions v Zuma [2009] ZASCA 1; 2009 (2) SA 277 (SCA); 2009 (1) SACR
361 (SCA); 2009 (4) BCLR 393 (SCA); [2009] 2 All SA 243 (SCA) para 26.
55 Transnet Ltd v Rubenstein 2006 (1) SA 591 (SCA) para 28.
56 Minister of Land Affairs and Agriculture and Others v D & F Wevell Trust and Others [2007] ZASCA 153;
2008 (2) SA 184 (SCA) para 43.

new case on the facts. The position is worse where the arguments are advanced
for the first time on appeal’.

[97] In my view, this is precisely such a case. Seegobin J appeared to recognise
as much in his judgment on the application for leave to appeal,57 when he
observed:
‘I immediately point out that the applicants’ case was very poorly pleaded on the papers. This
much was fairly and properly conceded by Mr Ngcukaitobi in the present application. The
applicants had simply failed to make out a proper case for an interdict in their founding papers.
I considered that the factual allegations relied on were, for the most part, incorrect and
unsubstantiated. The application was accordingly dismissed for the reasons set out in the
judgment.’

[98] That, ought to have led to the dismissal of the application for leave to
appeal. Surprisingly, it did not. The learned judge proceeded to hold:
‘Despite the difficulties in the papers and my misgivings about the applicants’ prospects, I have
listened intently to the submissions advanced by all counsel in the present application. In view
of the various pieces of legislation involved as well as issues of interpretation and questions of
legality that may arise I am persuaded that an appeal would have reasonable prospects of
success. I also consider that it may also be in the public interest to have some finality on the
issues raised by the applicants. For these reasons I am persuaded that leave to appeal should be
granted.’58

[99] If, indeed, the appellants ‘had simply failed to make out a proper case’ in
their founding papers for the relief sought, it is difficult to comprehend why the
learned judge took the view that the matter was nonetheless deserving of the
attention of this Court. If, as he correctly points outs, the factual allegations relied

57 Global Environmental Trust and Others v Tendele Coal Mining (Pty) Ltd and Others [2019] ZAKZPHC 62
para 7.
58 Global Environmental Trust fn 57 para 8.

upon by the appellants were, ‘for the most part, incorrect and unsubstantiated’,
that, one would have thought, would have been the end of the matter.

[100] Seegobin J felt impelled to grant leave to the appellants to appeal, because
in his view there were ‘issues of interpretation and questions of legality that may
arise’.  What those were, he did not elaborate. And, how one would get to those
issues, given the evident unreliability of the appellants’ allegations, remained
unexplained. Despite this, my colleague Schippers JA inclines to the view that the
appeal must succeed. Needless to say, I do not agree.

[101] The appellants seek an order interdicting the first respondent (Tendele),
from conducting mining operations at its Somkhele mine. They contend that
Tendele is mining without the necessary statutory authorisations and approvals.
The interdict sought is far reaching. If granted, it would have the effect of closing
Tendele’s operations. More the reason, one would think, for a proper case to have
been made out on the papers.

[102] The appellants say that Tendele’s current mining operations are unlawful
because it has no: (i) environment authorisation issued in terms of s 24 of the
National Environmental Management Act 107 of 1998 (NEMA); (ii) land use
authority, approval or permission from any municipality having  jurisdiction; (iii)
waste management licence issued by the fourth respondent, the Minister of
Environmental Affairs (the Minister) in terms of s 43 of the National
Environmental Management: Waste Act 59 of 2008 (the Waste Act); and (iv)
written approval in terms of s 35 of the KwaZulu-Natal Heritage Act 4 of 2008
(the KZN Heritage Act) to damage, alter, exhume or remove any traditional
graves.

[103] Tendele began its mining operations in 2006 pursuant to the grant of an
‘old order’ mining licence and subsequently a mining right, and the approval of
an Environmental Management Programme (EMP), granted and approved in
terms of the Mineral and Petroleum Resources Development Act 28 of 2002 (the
MPRDA). The Somkhele Mine comprises a single mining area on Reserve No 3.
However, the mining operations are divided amongst five areas and separate
mining rights and EMP’s apply to the different areas. The mining right in respect
of Area 1 was granted to Tendele on 21 May 2007. The EMP applicable to the
Area 1 mining right was approved on 22 June 2007. The Areas 2 and 3 converted
mining right was granted to Tendele on 1 February 2011. On 8 March 2013, the
right was amended to include the KwaQubuka and Luhlanga areas. The EMP
attaching to the mining right of Areas 2 and 3 was approved on 30 March 2011.
Amendments to this EMP, to cater for the inclusion of the KwaQubuka and
Luhlanga areas were approved on 29 May 2012. The Areas 4 and 5 mining right
was granted on 31 May 2016. The EMP applicable to this right was approved on
26 October 2016.

[104] Tendele is only actively mining in Area 1 and the extended area of Area 2,
namely, the KwaQubuka and Luhlanga areas. The Mine’s coal wash plants are
located in Area 2. Mining operations are not being undertaken in Area 3. Mining
operations ceased in Area 2 in January 2012, due to depletion of the anthracite
reserves. Mining operations have not yet started in Areas 4 and 5. The second and
third appellants have launched review proceedings to, inter alia, set aside the
mining right granted in respect of Areas 4 and 5.

[105] The appellants seek to interdict all of Tendele’s mining operations, until it
has obtained the authorisations referred to in paragraph 96 above, which it says
are required. In the view that I take of the matter, which is evidently much

narrower than that of my colleague, Schippers JA, the high court correctly refused
to grant the relief sought.

As to (i)
[106] The appellants contend that Tendele is mining unlawfully because no
environmental authorisation as contemplated by NEMA has been issued to it.
According to the appellants, such environmental authorisation was required both
prior to 8 December 2014, when the One Environmental System was introduced
and, after that date.

[107] The question of whether Tendele was required to obtain an environmental
authorisation as required by s 24F(1)(a) of NEMA does not arise on the papers,
because the appellants failed to allege that Tendele is conducting any of the listed
activities at Somkhele. The appellants’ founding affidavit lacks the necessary
allegations to sustain this ground of unlawfulness. Section 24F(1)(a) of NEMA
prohibits the commencement of ‘listed activities’ in the absence of environmental
authorisation. Listed activities are those identified in terms of s 24(2).

[108] Acting in terms of this section (and its predecessor, s 21 of the Environment
Conservation Act 73 of 1989 (the ECA)), the Minister identified the activities that
may not commence without environmental authorisation. Since the first list of
activities was published in terms of the ECA on 5 September 1997, the list of
activities has been replaced and amended on several occasions. New activities
have been added; the definition of certain activities has been amended and some
activities have been removed.

[109] Any allegation that Tendele has breached s 24F(1)(a) of NEMA, at a bare
minimum, had to identify: (a) the listed activity alleged to have been commenced
without environmental authorisation; and (b) the date on which that activity
commenced. The appellants did not plead these essential facts in their founding
affidavit. The sum total of the appellants’ evidence in the founding affidavit on
this score was the following:
‘Normally speaking, mining is a listed activity which has an impact on the environment and as
such an Environmental Authorisation (“EA”) must be obtained in terms of the National
Environmental Management Act 107 of 1998 (NEMA).’

[110]  Tendele’s answering affidavit set out why, as a matter of law, it contended
that there is no requirement for environmental authorisation for its mining
operations. It also pointed out that, under the ECA, authorisation under any
environmental legislation was not required for mining operations or activities
directly related thereto. Given the case that it was called upon to answer,
Tendele’s answering affidavit was a perfectly legitimate response. It bore no onus
or evidentiary duty.

[111] In their replying affidavit, the appellants stated:
‘It is accepted that there are no listed activities related to “mining” as a special category.
However, there are a host of listed activities which relate to mining. These are set out in a table
which is annexure ‘R1’ hereto.’
That was the high-water mark of the appellants’ case. Annexure R1 contains a list
of the activities requiring environmental authorisation under NEMA. The
appellants made no effort, even in reply, to identify which of the activities
Tendele was allegedly undertaking, nor when Tendele allegedly commenced
them.

[112] Indeed, as pointed out in Minister of Land Affairs and Agriculture v D & F
Wevell Trust:

‘It is not proper for a party in motion proceedings to base an argument on passages in
documents which have been annexed to the papers when the conclusions sought to be drawn
from such passages have not been canvassed in the affidavits . . . A party cannot be expected
to trawl through lengthy annexures to the opponent’s affidavit and to speculate on the possible
relevance of facts therein contained. Trial by ambush cannot be permitted.’59

[113] In any event, by the time of the replying affidavit it was already too late.
These are the kinds of allegations that should have been included in the founding
affidavit so that Tendele could answer them. On appeal, the appellants try to
escape this difficulty by casting a duty or onus on Tendele to have supplied the
missing allegations, either in its answering affidavit or the correspondence. They
say that it was clear from the pre-litigation correspondence that the appellants
lacked sufficient detail to enumerate which activities triggered specific listed
activities; that it was common cause from the correspondence that Tendele was
conducting listed activities and, that Tendele ought to have denied that it was
engaged in any listed activities or explained what listed activities it was
undertaking. But, that is to cast a duty on Tendele that, in law, it simply did not
bear.

[114] The appellants submit that Tendele ought to have supplied the allegations
that were missing from the founding affidavit, because those facts were peculiarly
within Tendele’s knowledge. In support of this proposition, they rely on
Wightman t/a J W Construction v Headfour (Pty) Ltd and Another.60 But
Wightman does not assist them. As it was put in Wightman, ‘[w]hen the facts
averred are such that the disputing party must necessarily possess knowledge of
them and be able to provide an answer’,61 a bare denial will not suffice to create
a dispute of fact. However, as Wightman made plain: ‘[t]here will of course be

59 Minister of Land Affairs fn 56 para 43.
60 Wightman t/a J W Construction v Headfour (Pty) Ltd and Another [2008] ZASCA 6; [2008] 2 All SA 512
(SCA); 2008 (3) SA 371 (SCA).
61 Wightman fn 60 para 13.

instances where a bare denial meets the requirement because there is no other way
open to the disputing party and nothing more can therefore be expected of him’.62
This is precisely such a situation. There was nothing to deny because the
appellants did not aver sufficient facts that called for more. If anything, they were
mistaken about the elements of their cause of action. In the circumstances,
Tendele had no duty to supply the missing allegations.

[115] It follows that on the papers as they stand, one simply does not get to the
issue of the proper interpretation of NEMA.

As to (ii)
[116] The appellants contend that Tendele is undertaking mining operations in
contravention of the KwaZulu-Natal Planning and Development Act 6 of 2008
(the KZN Planning Act) and the Spatial Planning and Land Use Management Act
16 of 2013 (SPLUMA). The appellants accept that the KZN Planning Act and
SPLUMA do not apply to any of Tendele’s operations that occurred prior to the
commencement of those statutes. They now limit their attack to mining, which
they say, will occur in the future in respect of the mining right of Areas 4 and 5.
In heads of argument filed on behalf of the appellants, it is contended that the use
of the land covered by the Areas 4 and 5 mining right ‘to commence mining would
be to convert that land to a new purpose by “making use of its resources”’.

[117] The contention is unsustainable. In the first place, it was not pleaded by the
appellants. As a result, the necessary factual allegations are nowhere to be found
in the appellants’ affidavits. Tendele was also never afforded an opportunity to
respond to such a case. In the second place, the appellants’ contention treats the
mining that will occur in Areas 4 and 5 in the future as if unrelated to the mining

62 Ibid.

that has occurred to date at Somkhele. As explained above, the Somkhele Mine
(including the area forming the subject of the Areas 4 and 5 mining right)
comprise a single mining area on Reserve No 3. Tendele’s mining operations
commenced on Reserve No 3 in 2006 before both the KZN Planning Act and
SPLUMA commenced.63

[118] Be that as it may, two of the relevant local municipalities have confirmed
that no planning approval or land use approval is required for the continuation of
mining operations by Tendele.

As to (iii)
[119] The appellants contend that Tendele’s operations are unlawful as it does
not have a waste management licence for its activities as required by the Waste
Act. The appellants failed to identify any aspect of Tendele’s operations that
would require a waste management licence. This ground of alleged unlawfulness
is accordingly unsustainable on the pleadings.

[120] That aside, in terms s 20 of the Waste Act, no person may commence,
undertake or conduct a waste management activity except in accordance with a
waste management licence or the requirements or standards determined in terms
of s 19(3). A ‘waste management activity’ is defined in s 1 as any activity listed
in Schedule 1 or published by notice in the Gazette under s 19. Section 19
empowers the Minister by notice in the Gazette to publish a list of waste
management activities. On 29 November 2013 the Minister published the list of
waste management activities (the 2013 notice) that have or are likely to have a
detrimental effect on the environment.64 The 2013 notice contains transitional

63 The KZN Planning Act commenced on 1 May 2010 and SPLUMA commenced on 1 July 2015.
64 ‘List of Waste Management Activities that have, or are likely to have, a detrimental effect on the environment
GN R921, GG 37083, 29 November 2013.’

provisions, the purpose of which is to regularise the affairs of persons who were
in the process of conducting waste management activities at the time of the
publication of the notice.
[121] Regulation 7(1) of the 2013 notice provides:
‘A person who lawfully conducts a waste management activity listed in this Schedule on the
date of the coming into effect of this Notice may continue with the waste management activity
until such time that the Minister by notice in a Gazette calls upon such person to apply for a
waste management licence.’
Tendele’s mining operations and any waste management activity that it was
conducting, were being lawfully conducted in terms of its mining rights and
approved EMP’s at the time of the coming into effect of the 2013 notice. Tendele
was therefore entitled to continue conducting such activity, until called upon by
the Minister to apply for a waste management licence. The Minister has not called
upon Tendele to do so.

[122] Moreover, the interdict that the appellants seek is plainly too broad in
relation to the right sought to be protected. The alleged unauthorised undertaking
of waste management activities in terms of the Waste Act could not possibly
entitle the appellants to an interdict shutting down Tendele’s entire mining
operation. At best, they would only be entitled to relief in respect of a specified
listed activity, assuming that such activity had been identified in their pleadings,
which, as already stated, the appellants had failed to do.

As to (iv)
[123] Tendele accepts that it has previously removed or altered traditional graves,
without being in possession of the necessary authorisations from the Amafa
aKwaZulu-Natali Heritage Council (Amafa). It points out in its answering
affidavit that it has since taken steps to rectify its past failures. Tendele details a

series of engagements between it and Amafa, which has not been meaningfully
disputed by the appellants in reply.

[124] Tendele stated in its answering affidavit:
‘There is no reasonable apprehension that Tendele will in future alter, relocate, damage or
exhume any traditional graves without the necessary authorization from Amafa. Tendele has
unequivocally committed itself to working with Amafa and the community to ensure that future
relocations comply with the letter and the spirit of the law.
I am advised and accordingly submit that the [appellants’] complaints about Tendele’s conduct
in relation to traditional graves does not entitle them to any interdictory relief, far less an
interdict against the entire mining operation at Somkhele.’

[125] As it was put in National Council of Societies for the Prevention of Cruelty
to Animals v Openshaw:
‘An interdict is not a remedy for past invasion of rights but is concerned with present or future
infringements. It is appropriate only when future injury is feared. Where a wrongful act giving
rise to the injury has already occurred, it must be of a continuing nature or there must be a
reasonable apprehension that it will be repeated.’65

[126] There are no facts in this matter that would justify any reasonable
apprehension that Tendele will again relocate or exhume graves without the
appropriate approval. Moreover, here as well, even if the appellants’ complaint
were to be accepted, the alleged unauthorised removal of the traditional graves,
could not possibly entitle them to an interdict shutting down the entire mining
operation.

[127] In the result, I would dismiss the appeal. Tendele, commendably does not
seek costs.

65 National Council of Societies for the Prevention of Cruelty to Animals v Openshaw [2008] ZASCA 78; [2008]
4 All SA 225 (SCA); 2008 (5) SA 339 (SCA) para 20.

_________________
V M Ponnan
Judge of Appeal

APPEARANCES
For Appellants:

T Ngcukaitobi SC
(with M Mazibuko)

Instructed by

Youens Attorneys, Pietermaritzburg
Phatshoane Henney Attorneys,
Bloemfontein

For Respondents

P Lazarus SC

N Ferreira
Instructed by
Malan Scholes Inc, Johannesburg

Claude Reid Inc, Bloemfontein

For Amicus Curiae,
Centre for Environmental Rights
M Du Plessis SC

T Palmer

S Lushaba
Instructed by

Centre for Environmental Rights, Cape

Town
Phatshoane Henney Attorneys,
Bloemfontein
For Amici Curiae:

Mpukunyoni Community

Mining Forum

D Sibuyi

The Association of Mine Workers
and Construction Union

D Sibuyi
The National Union of Mineworkers  D Sibuyi
Instructed by

DMS Attorneys, Johannesburg
Pieter Skein Attorneys, Bloemfontein
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF
APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:

9 February 2021
Status:
Immediate
The following summary is for the benefit of the media in the reporting of this case and does not form part of
the judgments of the Supreme Court of Appeal
Global Environmental Trust and Others v Tendele Coal Mining (Pty) Ltd and Others
(1105/2019) [2021] ZASCA 13 (09 February 2021)

Today the Supreme Court of Appeal (SCA) handed down judgment dismissing the appeal
against an order of the KwaZulu-Natal Division of the High Court, Pietermaritzburg.

The issue before the SCA was whether Tendele Coal Mining (Pty) Ltd, the respondent, is
mining without the necessary statutory authorisations and approvals. The SCA held that the
appellants, Global Environmental Trust and Mfolozi Community Environmental Justice
Organisation did not make out a case in their founding papers that the respondent was
conducting listed activities requiring environmental authorisation as contemplated in s 24 of
the National Environmental Management Act 107 of 1998 (NEMA). The SCA also found that
the respondent did not require municipal approval for land use in terms of the Spatial Planning
and Land Use Management Act 16 of 2013; or a waste management licence under the National
Environmental Management: Waste Act 9 of 2008, because of transitional arrangements in
these statutes. The appellants’ application for an interdict to prevent the relocation of ancestral
graves was also refused on the basis that the appellants failed to establish a reasonable
apprehension of harm.

In a separate minority judgment it was held that respondent’s mining operations were unlawful
and unconstitutional without an environmental authorisation under s 24 of NEMA. This order

was suspended for one year to enable the respondent to obtain the necessary environmental
authorisation. It was also held that an order declaring that the respondent’s mining operations
is unlawful and unconstitutional unless it obtained approval in terms of the KwaZulu-Natal
Heritage Act 4 of 2008, to alter or remove additional graves, was appropriate.

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