The hold-up of the regulations that were supposed to accompany the National Environmental Management Laws Amendment Act created uncertainty in the mining and prospecting sectors.
The law aimed to rationalise the contradicting legislative requirements relating to the environmental impacts of prospecting and mining. It gave a minister of mineral resources power to grant environmental authorisations for prospecting and mining. It also intended to transfer powers relating to mining activities from Molewa to a minister of mineral resources.
When Aquarius Platinum was refused a water use licence by the Department of Water and Sanitation‚ it challenged the validity of the president’s decision that put into operation the amendment act before publishing regulations necessary for the implementation of the law.
In May last year‚ the high court in Pretoria set aside the decision of the president.
It then sent the judgment to the Constitutional Court to confirm the order of invalidity made by the court.
In a unanimous judgment‚ Justice Chris Jafta said the fault for putting the amendment act into force without the necessary regulations lay squarely on the minister’s shoulders.
“She and she alone is to blame and not the president. The minister was the functionary mandated to make the regulations within three months from the date of publication.”
Jafta said there was no explanation for her failure to publish the regulations.
Parliament had delayed the coming into operation of the act by three months to afford the minister time to make the regulations‚ the Constitutional Court said.
“It may well be that she has a plausible explanation for her failure but we simply do not know because she chose not to furnish it. For now it is fair to infer from her failure to give an explanation that she has none. Otherwise she would have provided one if she had it‚” Jafta said.
The matter raised a serious dereliction of duty on her part‚ he said‚ adding that from September 2014 when the Act came into force to July 2015 when she published the regulations‚ a gap was created which may have had catastrophic consequences.
“Yet the minister did not consider it necessary to explain the lapse in these proceedings.”