DECISIONS BY REGIONAL MANAGERS WITHIN SOUTH AFRICA'S DEPARTMENT OF MINERAL RESOURCES MAY BE UNLAWFUL

Author: Dr Matthew Burnell 

We have recently come across decisions made by Regional Managers within South Africa's Department of Mineral Resources (“DMR”) in terms of sections 24P (Financial provision for remediation of environmental damage) and 28 (Duty of Care) of the National Environmental Management Act (“NEMA”). The Regional Manager does not have the requisite authority to make decisions in terms of these sections and, as a result, any such decisions are unlawful and can be challenged and overturned or (in certain instances) revoked.

Section 24P – Financial provision for remediation of environmental damage

Section 24P regulates financial provision for remediation of environmental damage arising from prospecting or mining activities. Prior to 2 September 2014, financial provisioning was regulated by section 41 of the Minerals and Petroleum Resources Development Act (“MPRDA”) read with regulations 53 and 54 of the MPRDA Regulations. These sections and regulations requires that a prospecting / mining right applicant make financial provision for the rehabilitation of negative environmental impacts arising from their mining activities. If the right holder fails to fulfil their remediation obligations in terms of the Environmental Management Plan / Programme, the DMR could implement these obligations using the financial provision.

With effect from 2 September 2014, section 41 of the MPRDA was deleted and replaced with section 24P of NEMA. Like section 41, section 24P states that the holder of a mining right must annually assess their environmental liability in the prescribed manner and increase their financial provision to the satisfaction of the Minister of Mineral Resources.

The Minister of Mineral Resources is permitted in terms of section 42B of NEMA to “delegate a function entrusted to him or her in terms of the NEMA to (a) the Director-General of the Department of Mineral Resources or (b) any officer in the Department of Mineral Resources”. Although these delegations must be in writing, they are not publicly available. As a result, Herbert Smith Freehills South Africa LLP submitted an information request in terms of the Promotion of Access to Information Act, requesting copies of all of the Minister of Mineral Resources’ delegations in terms of the NEMA.

The only delegation of authority granted by the Minister of Mineral Resources in terms of NEMA and the National Environmental Management: Waste Act is dated 8 June 2015 permits:

• regional managers the powers to approve, grant and refuse environmental authorisations and waste management licences; and
• Chief Directors: Mineral Regulation to amend environmental authorisations and / or vary waste management licences.

In light of the above, any other power afforded to the Minister of Mineral Resources in terms of the NEMA (including the power to assess the adequacy of financial provision) remains with the Minister of Mineral Resources and any decisions by a Regional Manager in terms of section 24P is unlawful and may be challenged.

Directives in terms of section 28

Section 28 of the NEMA imposes an obligation on every person to take reasonable measures to prevent pollution or environmental degradation from occurring, continuing or recurring, failing which the Director General of Environmental Affairs, the Director-General of Mineral Resources or the provincial head of department may, after having given adequate opportunity to affected persons to inform him or her of their relevant interests, direct any person who is causing, has caused or may cause significant pollution or degradation to the environment to’ implement the measures contained in the directive.

The Regional Manager is not authorised to issue a directive in terms of section 28(4). Although Regional Managers can be considered to be “provincial heads of department”, this term has a specific meaning in the NEMA which is limited to the head of department of provincial department responsible for environmental matters. Furthermore, section 42B does not allow the Director-General of Mineral Resources to delegate the powers afforded to him or her to another official.

Therefore, any directives issued by a Regional Manager in terms of section 28(4) of NEMA are unlawful and subject to challenge.

For more information, please contact Dr. Matthew Burnell or your usual Herbert Smith Freehills contact.