Johannesburg – A High Court has ruled that mining-affected communities can join the application of the Chamber of Mines to have the Mining Charter reviewed.
The matter was heard at the North Gauteng High Court on Tuesday.
The urgent application was launched by three mining communities - Mining Communities United in Action, Women from Mining Communities United in Action and Mining and Environmental Justice Community Network of South Africa - after the Chamber did not consent to them joining its main application against the Department of Mineral Resources (DMR).
According to court papers filed by the communities’ legal representatives, the Centre for Applied Legal Studies (CALS) and Lawyers for Human Rights (LHR), the applicants had initially written a letter to both the Chamber and the Deputy Judge President on October 11, 2017, notifying them that they intend to join the main application to have the 2017 Mining Charter reviewed.
However, on October 13, the Chamber indicated to the communities that it did not consent to their request for intervention.
The urgent application was launched on the basis that the Deputy Judge President, on October 20, advised that if the communities plan to join the main application they would have to file an urgent application as the hearing of the main application is to take place on December 13 and 14 this year.
In its responding affidavit, the Chamber argued that the matter was not urgent. “There is no urgency demonstrated by the applicants and if there is, then it is self-created,” the affidavit read.
The Chamber also argued that the ground of review sought by the communities, which is a lack of consultation, was not a ground of review of the Chamber.
"The intervention accordingly seeks to introduce different facts and legal considerations different to the Chamber’s review application,” the affidavit read.
The Chamber was also concerned of the prejudice that it would suffer if the court allowed the communities to intervene. It said that, if the communities joined the matter, the main application will unlikely be heard on the dates set in December.
“Secondly the uncertainty of the 2017 Mining Charter will continue to have a negative effect on the mining industry and the SA economy.”
The Chamber added that the application would take longer than two days set aside for the hearing. “The Chamber will have to sit and listen to the review of ground, that at best does not represent the substantive complaints raised by it.”
The affidavit further stated: “For if the applicants intervened and the Honourable Court in due course decided on the main application on the ground asserted by the applicants, namely a lack of consultation, the purpose of the main application would have been wasted.”
The Chamber emphasised that it sought a ruling on the powers of the minister as well as the rationality of the 2017 mining charter. “There may be no ruling on these issues if the main application is decided solely on the lack of consultation,” the Chamber argued.
Lack of consultation
In their papers papers, the communities clarified that they do not support the case of the Chamber and solely wanted to intervene on the basis of the exclusion of mining-affected communities during the drafting of the 2017 Charter.
“Although we will leave it for the court to determine our intervention in this matter at the commencement of the hearing, it is worth mentioning that yet again the Chamber of Mines has failed to see mining-affected communities as stakeholders to be engaged with in decisions which have impact on our lives,” the affidavit read.
“The Chamber of Mines seems to take the view that it should make a case for its inclusion in the drafting of the 2017 Mining Charter and simultaneously call for the exclusion of mining-affected communities in the same processes.”
The communities also indicated that the Chamber would not suffer prejudice by their inclusion in the main application as no relief is sought against the Chamber. The communities clarified that relief was sought against Mineral Resources Minister Mosebenzi Zwane.
The communities took aim at the minister for failing to engage with them on the Charter. “The lack of consultation has exacerbated stresses and anger within communities who are already frustrated by mining.
“The lack of meaningful engagement with mining affected communities has led to adverse impacts to people living in mining-affected areas. It has reduced us to people with no existences and worth.”
The communities argued that their application was brought within reasonable time. The affidavit went onto explain that allowing the communities to join the main application would avoid multiple actions resulting in delays, and avoid wasted costs.
Judge Motle ruled that the CALS and LHR applications to intervene are urgent. All parties in the applications must comply strictly with time frames set by Deputy Judge President.
The LHR must file their affidavit not later 15:30 on November 17. The Chamber will pay costs for both CALS and LHR.
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