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.

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