Supreme Court of Appeal
Save the Vaal; Rosand Ranch (Pty.) LTD and others
Director of Mineral Development for the Gauteng Region; Sasol Mining
Sasol Mining held extensive mineral rights near the Vaal River and, in May 1996, urgently needed to extend its coal mining activities to that area. The potential site made open-cast mining the only feasible method of retrieving coal and was located close to the southern bank of the river. Sasol Mining applied to the Director of Mineral Development for a corresponding mining license under section 9 of the Minerals Act 50 (1991).
One respondent, Save the Vaal, was an unincorporated association made up of concerned people who owned property and lived along the Vaal River. Its mission was to protect and maintain the environmental integrity of the Vaal River and its environs for current and future generations, with specific focus on the area between the Letaba Weir and the Barrange – the precise area where Sasol Mining proposed to locate their open-cast mine. Other respondents included individual members of Save the Vaal and property owners in the affected area. The respondents were motivated by environmental concerns regarding the open-cast mine, primarily: (1) destruction of the Rietspruit wetland; (2) threats to fauna and flora; (3) pollution; (4) loss of water quality; and (5) decreased value of properties.
In July 1996, while Sasol Mining’s application was still under consideration, Save the Vaal contended that its opposition to the application was entitled to be heard. The Director refused to hear Save the Vaal’s complaints, and in May 1997 issued the contested mining license. The Director took the view that consideration of Save the Vaal’s objections would be premature, since the mere issuance of a mining license resulted in no environmental impact and infringed upon no rights. The Director held that opportunity for public comment was not required until the environmental management program approval stage. Save the Vaal challenged the Director’s determination and won. Sasol Mining and the Director then appealed to the Supreme Court.
The Supreme Court examined the question of whether interested parties desiring to oppose a mining license application (by the holder of mineral rights) were entitled to raise environmental objections and be heard by the Director of Mineral Development. Save the Vaal argued that it had a right to be heard in accordance with the fundamental audi alteram partem rule (the “audi-rule”), which provides that each party to an issue is entitled to have their perspective heard, and which respondents contended became operative whenever a statutorily authorized public entity made a decision prejudicially affecting an individual’s existing rights or interests – here, the respondents’ constitutional right to a protected environment (R2HE) found in section 24 of the Constitution.
The Court found for Save the Vaal and dismissed the appeal. They held that the audi-rule applied in this case, and therefore the Director should have provided Save the Vaal an opportunity for participation. The Court noted that although the mere issuance of a license had no impact on the environment, it still triggered the rule because it set in motion a process that would lead to actual mining, with tangible environmental consequences.