Trans Hex seeks legal costs from environmental non-profit that took it to court to stop West Coast mining

2 Jun 2023

Five months after an urgent application was filed with the Western Cape High Court, one of South Africa’s biggest diamond-mining companies has responded. Trans Hex is holding its ground, arguing that its mining rights based on renewed environmental authorisations are legal.

Last week, Trans Hex Operations, one of South Africa’s largest diamond-mining entities, filed answering papers in the Western Cape High Court as the fourth respondent to an urgent application to stop it from mining near the fishing community of Doringbaai and potentially along a stretch of coast north of the village in the Western Cape.

The application to interdict the mining operation was filed by the environmental non-profit Protect the West Coast (PTWC) in conjunction with the Doringbaai and Olifants River Small Scale Fishing Communities in December 2022.

They argued that the company, which broke ground last May, was mining with a renewed mining right that is not up to date with current social and environmental legislation, nor up-to-date science-based recommendations and rehabilitation measures.

As the court registrar did not allocate this matter on the urgent court roll (for reasons the applicants are unsure of), the deadline for the answering papers kept getting pushed back.

Read more in Daily Maverick: Activists haul diamond-mining company to court to avert “moonscape” fate for sensitive West Coast

The company, which changed its name in February this year from Moonstone Diamond Marketing back to Trans Hex Operations, has been mining in South Africa for 60 years, with operations spanning 70km along the West Coast, from Doringbaai to about 50km north of the Olifants River mouth, which is considered a biodiversity hotspot.

In their founding affidavit, the applicants argue that the Department of Mineral Resources and Energy (DMRE) – which is responsible for granting mining applications in South Africa – was incorrect to renew Trans Hex’s mining rights, which are based on an environmental management plan (EMPr) from 2002.

Patrick Forbes, the legal head of PTWC, explained to Daily Maverick that as part of the amendments made to the National Environmental Management Act (Nema) and the Mineral and Petroleum Resources Development Act (MPRDA), since their EMPr was last updated, we now have “one environmental system” (as of 2014), which lists mining as one of the trigger activities for which a company needs an environmental authorisation, not just an EMPr.

Trans Hex’s argument

Trans Hex has an old mining site in Doringbaai from the 1990s, which has been inactive for about two decades.

To local residents’ surprise, Trans Hex turned up on the beach last May and began mining until March 2023 – with a mining right based on an EMPr from 2002.

Read more in Daily Maverick: Diamond-mining operation moves out of Western Cape fishing village – but the fight is far from over

In Trans Hex’s answering papers, Ian Peter Hestermann, director of Trans Hex Operations, contended that an environmental authorisation is not always required, even after the “one environmental system” came into effect, because the new legislation allows for transitional arrangements and their EMPr was granted before the new system came into place.

Section 12(4) of the Nema Amendment Act provides that an EMPr approved in terms of the MPRDA immediately before the commencement of the new legislation in December 2014 must be regarded as amended.

Trans Hex interprets this provision of the law being put in place to allow a holder of an EMPr before the 2014 legislation to continue to mine after the legislation was put in place – “if this were not so, the result would have been to render existing lawful mining operations unlawful overnight. This is an absurd, insensible and unbusinesslike result,” read the respondent’s answering papers.

“Therefore, this provision must be interpreted to mean that an EMPr approved and in force on 8 December 2014 constitutes sufficient authorisation for the holder thereof to continue its operations in terms of that EMPr and a separate EA under Nema is not required.”

Furthermore, Trans Hex argued that if a holder of a mining right is mining in accordance with their EMPr, “a renewal of the mining right related to that EMPr may lawfully be granted”.

Old mining rights renewed

Trans Hex has mining rights relating to sea concessions 11A, 12A and 13A on seven mining sites seaward of the low water mark in the Western Cape, initially issued in terms of the Minerals Act 50 of 1991.

Trans Hex said it applied for the conversions of these authorisations in terms of the “transitional arrangements to the MPRDA” – the converted mining rights were granted by the director-general of the DMRE in 2010 for a period of 10 years, and in 2021 the renewal of all these rights was granted by the director-general at the end of 2021 for a period of 30 years.

“By virtue of the transitional provisions… to the MPRDA, these EMPrs remain in force,” said Tran Hex in its answering papers.

PTWC contended in their application that Trans Hex’s EMPr from 2002 cannot stand as an environmental authorisation and that the mining right should never have been renewed by the director-general of the DMRE on that basis.

Patrick Forbes, the legal head of PTWC, previously told Daily Maverick that “an application for environmental authorisation requires at the very least public participation, something which was entirely avoided with the current renewal, issued behind closed doors for another 30 years.

“By avoiding the environmental authorisation process Nema makes provision for, the local communities, the environment and fellow South Africans lose out.

“Allowing mining to take place in accordance with EMPrs that are 17 years old, without so much as calling for an update, is reckless.”

What the applicants argue is similar to what the DMRE said in response to Daily Maverick’s questions regarding not upholding the updated legislation from 2014:

“The Old Order Rights were converted following transitional arrangements in the MPRDA and the EMPrs approved in terms of the MPRDA.

“Thus, the scope of the MPRDA EMPr is equivalent to that of the Nema EMPr. An Environmental Authorisation is consent required prior to undertaking an activity. Moonstone Mining is an existing development… there is nowhere in law, and even as a matter of common sense, that an Environmental Authorisation should be done retrospectively.”

Basically, they argue that because Trans Hex met environmental and social standards when their EMPr was first granted in 2002, and the law doesn’t work retrospectively, their right still stands.

The abandoned environmental authorisation application

In August 2021, Trans Hex started the first phase of obtaining an environmental authorisation (EA) by preparing a draft scoping report for an upgrade of its EMPr, but it was never completed.

PTWC pointed out that it was strange that Trans Hex applied for an EA and then abandoned that application – indicating at that time they agreed they would need an EA and not just an EMPr.

Trans Hex says this is incorrect, and the reason they submitted and withdrew an application is that they originally thought the production of pebbles (a by-product of mining which they donate to the Doringbaai community to sell) may constitute a listed activity.

Daily Maverick sent questions to Trans Hex on 23 January and 2 March this year, asking what benefit they provided to the local community and they did not respond, instead asking us to wait until their answering papers were filed.

But then they were advised by their legal team that, since the pebbles are a by-product, it wouldn’t need to be listed as an activity.

Trans Hex said that in October 2020, the DMRE did ask Trans Hex to update their EMPr in conjunction with the approval of its new mining method and the inclusion of the pebbles.

However, Trans Hex is still in the process of updating their EMPr due to delays from the pandemic and the process being suspended when they received concerning comments from interested and affected parties about Yvonne Gutoona, the environmental assessment practitioner doing their EMPr update, and they needed to find a new practitioner.

Read more in Daily Maverick: Assault on the West Coast: Inside the illegal diamond mining applications

After appointing environmental consulting firm SLC Consultants to facilitate the update of their EMPr, as per the DMRE’s directive, the consultants started the process in October 2022 and the first draft was presented to Trans Hex in February 2023.

Trans Hex notes that the updated EMPr is still in draft form and needs specialist inputs before it can be published for comment, but the draft states that as there has been no change in the scope of activities originally approved, and no additional activities are planned, no EA in terms of the 2014 legislation is required.

Trans Hex emphasised that the directive to update their EMPr does not mean that their mining right would be suspended or cancelled.

According to Trans Hex, Nicholas Arnott, the environmental assessment practitioner from SLC, who prepared the draft updated EMPr, “does not anticipate that the impact assessment report will yield materially different mitigation measures beyond those included in the 2002 EMPr and the 2023 EMPr”.

Approaching the minister first

Trans Hex argued that PTWC has not followed the letter of the law by filing this application with the high court, and as a result will be seeking legal costs.

Aaron Larkens, head of legal for Trans Hex, told Daily Maverick: “In our view, PTWC has circumvented the provisions of the MPRDA and PAJA by failing to utilise the mandatory internal remedies and for, inter alia, this reason its allegedly urgent application is completely without merit and we will be seeking legal costs from PTWC.”

The Promotion of Administrative Justice Act – which is there to stop the public from making unlawful, unreasonable and procedurally unfair administrative decisions – stipulates that no court should review an administration action unless an alternative remedy has been exhausted – unless there are exceptional circumstances.

Trans Hex points out that an “alternative remedy” provided in MPRDA for a person who is seeking to challenge a decision made by the director-general should first appeal to the minister and that “no person may apply to the court for the review of an administrative decision… until that person has exhausted his or her remedies”.

Mike Schlebach, CEO of PTWC, told Daily Maverick that they wrote to the DMRE a number of times before filing an application with the high court, trying to find out why they had granted Trans Hex the renewal, but the DMRE did not respond to their questions adequately.

They sent more correspondence but didn’t hear back.

The local community

Daily Maverick sent questions to Trans Hex on 23 January and 2 March this year, asking what benefit they provided to the local community and they did not respond, instead asking us to wait until their answering papers were filed.

In their answering papers, Trans Hex argues that their “operations have a significant benefit to the surrounding community, which would be impeded if the interim interdict were granted”.

Larkens told Daily Maverick that “through the donations of pebbles (waste product) that Trans Hex makes to Doringbaai Atlantic Pebbles, 28 local community members are employed – this is over and above a truck and trailer that has been donated to Doringbaai Atlantic Pebbles as part of an SLP [social and labour plan] project to transport the pebbles”.

Daily Maverick confirmed with Lawrence Klaas, who runs Doringbaai Atlantic Pebbles, that this is correct.

Larkens said a further R2.5-million has been committed as an SLP project to develop bulk infrastructure for a low-cost housing project in Doringbaai.

Peter Owies, who grew up in Doringbaai and is a community leader, said he didn’t know about this SLP project, adding: “We’re really in the dark about the operational side and the benefits for the community.”

A lack of communication seems to be a running theme with this mining operation – Doringbaai locals say they were not informed that Trans Hex was coming back and were shocked when trucks turned up on a public beach near their town last May, blocking access to the beach that residents use recreationally and for small-scale fishing.

Owies told Daily Maverick previously that when Trans Hex left, there was again no consultation process and the community had “the same feeling as when they came in – without a word. With people asking, ‘what happened?’”

PTWC is required to respond to the answering papers on 15 June and all parties are expected to appear in court on 29 August 2023. DM

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South Africa

Trans Hex’s argument

Old mining rights renewed

The abandoned environmental authorisation application

Approaching the minister first

The local community