South Africa
Licences, Property, Wetlands, Constitutional, Damages, Human Rights
This appeal raises the question whether interested parties, wishing to oppose an application by the holder of mineral rights for a mining licence in terms of sec 9 of the Minerals Act 50 of 1991 (‘the Act’), are entitled to raise environmental objections and be heard by the first appellant, who is the official designated to grant or refuse such licence (‘the Director’). The environmental concerns raised by the respondent are; the destruction of the Rietspruit wetland, threat to flora and fauna, pollution, loss of water quality and decreased value of properties. The respondents in addition argued that the audi rule comes into operation whenever a statute empowers a public official or body to do an act or give a decision prejudicially affecting a person in his or her liberty or property or existing rights or interests, or whenever such a person has a legitimate expectation of a hearing, unless the statute expressly or by necessary implication indicates the contrary, or unless there are exceptional circumstances which would justify a court in not giving effect to it. The primary substantive rights or interests on which the respondents rely (and which according to them would be affected prejudicially by an adverse decision of the Director) are the constitutional rights to the environment. The appellants contend that in the present case the rule is excluded by necessary implication. In addition the appellants stated that the mere issuing of a mining licence by the Director in terms of sec 9 of the Act can have no tangible, physical effect on the environment. For this reason no rights are infringed and there is no case for a hearing. They added that in the in the present matter the Director has not approved an environmental management programme in terms of sec 39, and so, it is argued by the appellants, the respondents have no right infringed or in jeopardy, and have consequently no claim to a hearing. The court rejected these arguments and stated that nothing in sec 9 or in the rest of the Act either expressly or by necessary implication excludes the application of the rule, and there are no considerations of public policy militating against its application. On the contrary, the application of the rule is indicated by virtue of the enormous damage mining can do to the environment and ecological systems. It added that their Constitution, by including environmental rights as fundamental, justifiable human rights, by necessary implication requires that environmental considerations be accorded appropriate recognition and respect in the administrative processes in our country. In the result, the appeal is dismissed with costs.