The 2014 amendments to the National Environmental Management Act of 1998 (Nema) have brought certain changes to the internal appeal process with respect to appealing decisions made in terms of this Act, including decisions made by authorised officials of the Department of Mineral Resources (DMR). The DMR and the Department of Environmental Affairs (DEA) have, however, decided to implement these amendments effective December 8.

In terms of the 2008 amendments to the Mineral and Petroleum Resources Development Act of 2002 (MPRDA), with effect from December 7, the Minister of Mineral Resources will be the responsible authority for implementing the environmental provisions contained in Nema in so far as they relate to mining or related activities. In terms of the 2014 amendments to Nema, which came into operation on September 2, any person may appeal to the Minister of Environmental Affairs against a decision made in terms of Nema by the Minister of Mineral Resources or any person acting under his delegated authority, which appeal must be noted in the prescribed manner.

An appeal to the Minister of Environmental Affairs automatically suspends the decision which is the subject of the appeal. This suspension could have severe consequences for mining companies. If a third party appeals the decision of the Minister of Mineral Resources to grant an environmental authorisation in respect of an application for a mining right, the granting of the environmental authorisation is automatically suspended, which would mean that the mining right application cannot be processed pending the finalisation of that appeal. The 2014 amendments to Nema do not provide a mechanism for mining companies to request the Minister of Environmental Affairs or the Minister of Mineral Resources to lift the suspension of the decision appealed against by a third party pending the determination of the appeal. There is, however, a mechanism for mining companies that intend to appeal a directive received in terms of section 28(4) of Nema to request that such directive be suspended, pending the determination of the appeal.

The 2014 amendments to Nema also include an internal remedy in relation to the failure by the Minister of Mineral Resources to take a decision in respect of an application for an environmental authorisation within the timeframes applicable to that process. The applicant for an environmental authorisation may apply to the Minister of Environmental Affairs to facilitate the process of taking the decision by the Minister for Mineral Resources or, in certain circumstances, for the Minister of Environmental Affairs to take the decision herself. This amendment means that an applicant for an environmental authorisation can no longer approach the courts directly to seek relief in respect of the failure by the Minister of Mineral Resources to take a decision, as the applicant would first have to exhaust this internal remedy (by applying to the Minister of Environmental Affairs), as required by the Promotion of Administrative Justice Act of 2000, before approaching the courts.

It is clear that, as of September 2, the appeal authority with respect to decisions made by authorised officials of the DMR in relation to an environmental provision in terms of Nema has changed from the Minister of Mineral Resources (or the director-general of the DMR) to the Minister of Environmental Affairs. It remains to be seen whether the standards applied by the Minister of Mineral Resources as an appeal authority would be the same as the standards applied by the Minister of Environmental Affairs. The appeal authority with respect to all other decisions made by authorised officials of the DMR in terms of the MPRDA will remain the same and appeals against those decisions will still be lodged and dealt with in terms of the MPRDA.

It is also evident that, currently, as a result of the suspended operation of certain of the 2008 amendments to the MPRDA and the current provisions of Nema that are in operation, certain of the provisions in the MPRDA and Nema are inconsistent. In light of this, enforcement of certain of the 2014 amendments to Nema, including the internal appeal process with respect to decisions taken by the Minister of Mineral Resources in terms of Nema are unworkable.

The regulations in respect of the 2014 amendments to Nema in relation to internal appeals will be embodied in the National Appeal Regulations, which are still in draft form and have not been promulgated yet. The National Appeal Regulations, once promulgated, will repeal the appeal regulations currently contained in the 2010 Environmental Impact Assessment Regulations. Once the National Appeal Regulations have been promulgated, they will provide certainty regarding internal appeal processes in respect of decisions made in terms of Nema by authorised officials of the DMR.

Even though the 2014 amendments to Nema came into operation on September 2, both the DMR and the DEA have indicated in media statements that the 2014 amendments to Nema will only be implemented from December 8. The DMR and DEA’s decision to implement the 2014 amendments to Nema from December 8 does not, in the interim, lawfully suspend the operation of the 2014 amendments to Nema, as there is a formal legal process which must be taken to suspend the operation of legislation.

The changes to the internal appeal process with respect to decisions made by authorised officials of the DMR in terms of Nema should be workable when the remainder of the 2008 amendments to the MPRDA come into effect on December 7, once the 2014 amendments to Nema are implemented and on promulgation of the National Appeal Regulations. Until then, uncertainty in this regard remains.