Protected areas (general)

Black Range Mining (Pty) Ltd v Minister of Mines And Energy N.O and Others (SA 09/2011) [2014] NASC 4 (26 March 2014);

Headnote and Holding: 

This was an appeal from the High Court to the Supreme Court. The case concerned a ministerial notice stating that nuclear energy prospecting licenses regarding certain areas will not be provided.  The appellant was allegedly an aspiring applicant. He thus felt aggrieved with the notice.

In the High Court, it was held that the appellant lacked legal capacity to challenge the notice as the notice did not create any triable issue. Aggrieved, the appellant appealed to the Supreme Court.

Thus, the main issue for determination was whether the respondent's notice exempting certain areas from being prospected for nuclear resources was unconstitutional. The appellant’s argument was that the denial of the prospecting license violated his constitutional right to work. 

In response, the Supreme Court upheld the High Court decision, but it disagreed with the High Court that the respondent lacked the legal capacity. According to the Supreme Court, the appellant would have been successful if the minister had no statutory powers to issue the notice or if the process was procedural. However, the minister had such powers under section 122(1) of the Mineral (Prospecting and Mining) Act of 1992. Consequently, the Court held that it cannot order the minister to issue the license if the notice is still in existence. Also, the Supreme Court held that the constitutional provision on the right to work does not mean that people can conduct mining activities without being regulated given the environmental challenges. 

Following this, the appellant's case was dismissed with costs.

Namib Plains Farming and Tourism CC v Valencia Uranium (Pty) Ltd and Others (SA 25/2008) [2011] NASC 3 (19 May 2011);

Headnote and Holding: 

In this Supreme Court case, the first respondent applied for the permit to drill boreholes in the Khan River for uranium mining activities. Subsequently, the second respondent granted the rights to use the boreholes and the water to the first respondent allegedly in the exercise of its powers provided under the Water Act of 1954.  The appellant’s case against the respondents was that the wildlife on its farm depended on the naturally occurring underground water to support natural habitats. Overusing the water from the rare sources in the area would, therefore, disturb the ecosystem. 

At the High Court level, the issue was to determine whether under the act the second respondent had the powers to grant such rights. The High Court held that the powers to grant such rights were limited to subterranean waters. Moreover, the court held that since under the act sections 27, 28 and 30, the president proclaims the underground waters. The president had never declared the areas allocated to the first respondent as such the permits were a nullity. As a result, there was nothing to be determined by the court in favour of the appellant. 

On appeal, the Supreme Court agreed that the permit issued was a nullity. However, it held that the High Court ought to have decided the case in favour of the appellant since, in law, illegal acts can create reviewable actions. Finally, the Supreme Court upheld the appellant’s claim.

Auala v S (SA 42/2008) [2010] NASC 3 (27 April 2010);

Headnote and Holding: 

This Supreme Court case concerned an appeal against the ruling of the High Court that found the appellant guilty primarily on counts of: (1) theft of unpolished diamonds in contravention of section 74 of Act 13 of 1999; alternatively, possession of unpolished diamonds in contravention of section 30(11) of Act 13 of 1999; (2) robbery; (3) malicious damage to property; and 4) escaping before being locked up in contravention of section 51(1) of Act 51 of 1977. 

The appellant was primarily charged in the High Court for stealing unpolished diamonds and fleeing arrest. He was convicted on all the counts and sentenced to both a jail term and payment of fine

The appellant felt aggrieved and appealed to the Supreme Court mainly on the ground that the prosecution side failed to establish that the mining company was the lawful owner of the alleged stolen diamond. 

The court held that the evidence obtained from the surveillance cameras clearly showed that the unpolished diamond that the appellant was trying to steal was discovered and recovered from him.  The court held that he was caught right at the exit of the mining site. So generally, the mining company was the one licensed to exploit and trade the diamond in that area the court a quo was justified to take a judicial notice that the diamonds belonged to the complainant. 

The court therefore refrained from disturbing both the conviction and the sentence of the High Court, so the appeal was dismissed.