Mining and Environmental Legislation has recently been thrown back into a state of confusion following the judgement of Aquarius Platinum (SA) (Pty) Ltd v Minister of Water and Sanitation and 5 Others in which the High Court declared the National Environmental Laws Amendments Act 25 of 2014 (“NEMLAA”) unconstitutional.

The NEMLAA was one of a number of amendments to the National Environmental Management Act 107 of 1998, the National Environmental Management: Waste Act 59 of 2008 and the Minerals and Petroleum Resources Development Act 28 of 2002 (“MPRDA”) in terms of which the regulation of the environment would be governed by the environmental suite of legislation but implemented by the Department of Mineral Resources.

Certain of these amendments related to residue stockpiles and residue deposits. The NEMLAA was published on 2 June 2014 and came into effect on 2 September 2014. In terms of the amendments, residue stockpiles and residue deposits (with the exclusion of historic residue deposits and residue stockpiles) would be regulated in terms of the NEMWA and not the MPRDA. In terms of these amendments, residue stockpiles and residue deposits would need to be managed “in the prescribed manner…in the environmental management plan or environmental management programme...”. The court defined “prescribed” as meaning “prescribed by regulation under this Act”. These regulations had not been promulgated by 2 September 2014 (and have yet to be promulgated). Residue stockpiles and deposits therefore were unregulated as the relevant provisions in the MPRDA had been deleted and the provisions stating that existing EMPs would be applicable had not come into force.

This “legislative vacuum” caused by what the court described as “the irrationality of the President’s decision” to put into effect the NEMLAA without the necessary regulations, caused the court to declare that the President’s proclamation of the NEMLAA is invalid and should be set aside.

The court acknowledged that the President was not party to these proceedings and had not given an indication of how this ‘legislative vacuum” was to be redressed. Due to this, the court was hesitant to declare the NEMLAA constitutionally invalid and requested that its judgement to declare the NEMLAA invalid, be transmitted to the Constitutional Court in terms of section 172 of the Constitution, for the Constitutional Court to decide whether to confirm the court’s order of invalidity.

It seems therefore that the law regulating the environment in mining is still uncertain and may be so for some time.