Legal remedies and approaches

Criminal and civil action against unlawful mining operations

• A mine has started operating in or near your community without any notice or consultation OR

• A company has started mining without all necessary licences and permits OR

• An old mine has not been rehabilitated OR• Other examples?

• What do you do?– Social action

• Possible legal interventions– Laying criminal charges– Instituting civil proceedings

• The importance of a multi-faceted approach – any legal intervention needs to be part of a broader social movement, supported by and supporting action by those affected by the mining.

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• Laying criminal charges– Not all problem mining in South Africa is a criminal

violation of the law. – When can you lay a criminal charge against a

mining company?– Why should you lay a criminal charge against a

mining company?– How do you lay a criminal charge against a mining

company?

• There are three pieces of legislation governing mining, all of which create criminal liability for certain non-compliance:– Mineral and Petroleum Resources Development

Act, 2002– National Water Act, 1998– National Environmental Management Act, 1998.

• MPRDA – Section 98 creates criminal offences for mining without a mining right or an approved

environmental management plan or programme or failing to notify and consult land owners and lawful occupiers of the land in question. It is also an offence not to manage environmental impacts in accordance with an approved EMP/EMPR and as an integral part of the mining operations.

• NWA– Section 15 provides that any water use not in accordance with the NWA is a criminal

offence. It is also an offence to unlawfully and intentionally or negligently commit any act or omission which pollutes or is likely to pollute a water resource; and it is an offence to commit an act which detrimentally affects or is likely to affect a water resource.

• NEMA– It is an offence to commence a listed activity without an authorisation in section 24F– Section 28(15) creates an offence where any person unlawfully and intentionally or

negligently causes significant or is likely to cause significant pollution or degradation of the environment; unlawfully and intentionally or negligently commit any act or omission which detrimentally affects or is likely to affect the environment in a significant manner; or refuse to comply with a directive issued under this section.

• What are the penalties? – MPRDA:

• The highest fine is an amount of R500 000 and/or imprisonment for a period not exceeding 10 years (section 99 of MPRDA)

– NWA:• On the first conviction, to a fine or imprisonment for a period not exceeding five years,

or to both a fine and such imprisonment and, in the case of a second or subsequent conviction, to a fine or imprisonment for a period not exceeding ten years or to both a fine and such imprisonment

• Maximum fine – R100 000

– NEMA:• A fine not exceeding R5 million or to imprisonment for a period not exceeding ten

years, or to both such fine and such imprisonment.

• Radical difference in fines from one piece of legislation to the next. Fines in the MPRDA are extremely low!

• When should you lay a criminal charge against a mining company?– Has the company committed an offence?

• The importance of access to information

– What will be achieved by laying a criminal charge against the company? Will this benefit the community?

– What complementary and/or alternative avenues could be explored such as:• Reporting environmental crimes to the environmental crimes hotline for

investigation by the Green Scorpions

0800 205 005• Calling on the DMR to suspend / revoke the licence to mine• Other interventions

• How do you lay a criminal charge against a mining company?– Looking at two case studies:

• Bathlabine Foundation – a pre-prepared A1 statement and accompanying documents;

• Samson Sibanda – mining officials caught trespassing on Mr Sibanda’s land. Including environmental violations with charges of trespassing.

– Following up, assisting in the investigation, keeping tabs of the case, liaising with the NPA

– Appointing a private prosecutor – s.33 of NEMA.

Benefits• Anyone can lay a charge at the

local police station.• A criminal investigation

tarnishes the reputation of the company.

• The state is required to intervene to assist (SAPS, NPA).

• Maybe personal liability for directors of companies.

• Others?

Challenges• Police aren’t familiar with this law

meaning it may require the assistance of a lawyer to draft the A1 statement.

• Penalties are not high enough to discourage illegal conduct.

• Requires a lot of follow up to ensure a proper investigation and explanation of the law.

• Courts and the police are very reluctant to prosecute environmental offences

• Others?

• Instituting civil proceedings– Criminal proceedings do not always achieve the

desired goals (such as stopping mining activities straight away or claiming compensation for damages suffered). Civil options include:•Mandamus• Interdict • Delictual claim for compensation• Administrative action

• Mandamus – Simply means approaching the court and asking for an order that a party does something. – One can seek a mandamus against either the mining company or a state entity – for example,

one can approach the court for an order that the Minister of Mineral Resources orders an investigation into non-compliance by a mining company. There must be a recognised duty under law.

• Interdict– When one seeks an interdict one seeks an order preventing a party from continuing or

commencing an activity or to perform a stipulated act either as interim or final relief. Granted in cases where there is an actual or threatened violation of rights. For example, one can obtain an interdict preventing a company from continuing with mining activities until that company has obtained all necessary licences.

– Difficult to obtain an interdict – must establish a reasonable apprehension of irreparable harm and no alternative satisfactory remedy and the balance of convenience must favour an interdict (amongst other factors)

– Example – Vele at Mapungubwe– Brought by way of application– Possibility of getting relief on an urgent basis (cant be purely financial)

• Claiming damages / compensation– This has not been sufficiently explored in relation to

environmental damages – One has to prove 5 elements:

• Act or omission• Wrongfulness – is there a legal interest that has been

unreasonably infringed? • Causation – did the action or omission result in the damages?• Fault – did the mining company act intentionally or negligently?• Damages - this can be both damages that can be expressed in

money (such as cracked houses) and damages that can’t (such as pain and suffering).

• Each of these elements presents their own challenges, for example one may need to appoint experts to determine causation and damages.

• Some damages may be very difficult to quantify – such as the value of a communal area in which to walk, work, play, study.

• Cases can take a very long time to be resolved – how does one manage the damages suffered in the interim? How does one mitigate damages?

• How is the community represented both during the trial and in the event of success or failure?

• Class actions• Who should make the claim for damages? Can one institute a class

action? An action instituted by a representative on behalf of a class of persons in respect of whom the relief claimed and the issues involved are substantially similar in respect of all members of the class. – This is not a clear part of SAlaw although there is some provision for

class action in NEMA and the new Companies Act, amongst other legislation.

– Largely untested area of law in SA but one that is worth exploring in the future.

– Where an entire community has suffered damages as a result of mining – eg. cracked houses, cattle deaths or even pain and suffering due to environmental degradation (an impact on wellbeing).

• Administrative review– A mining company or state body fails to comply

with the procedural or substantive requirements of PAJA, one can challenge a decision to grant a licence or approve an EMP/R by way of appeal (where necessary to satisfy internal remedies) and then review.

– This is a key tool when a company has failed to consult I&APs, for example, or has failed to provide necessary information.

• Conclusion– This has been a brief introduction to some of the civil and criminal options

available to communities affected by mining – there are other avenues we have not covered (such as Constitutional litigation and claiming criminal damages)

– Ideally we should be using all of the tools the law provides to fight problem mining

– BUT we face major problems in using any of these remedies:• The need for legal assistance• Lengthy court processes• Costly legal fees• Need for expert input – also costly• Maintaining community interest and support• Conflicting community needs in regard to extractive industries.

– KEY QUESTION: What role could a community network play in exploring these remedies and helping communities use these tools?