The Effectiveness of South Africa’s Environmental Law Framework in Regulating Mining and Related Activities

Abstract 

Considered as forming part of South Africa’s most crucial industries, Mining has contributed  to South Africa’s national income, the creation of jobs, and infrastructure development for  many years.1 South Africa’s economic framework significantly highlights the positive effects  of Mining, specifically minerals such as gold, platinum, coal and iron, which make up the  country’s top exports, and have encouraged foreign investment and strengthened the balance  of payments.2 However, irresponsible and poor mining activities in South Africa can have  major negative environmental impacts such as degradation, including water, soil, and air  pollution in mining communities, as a result of mine owners who fail to follow regulations  and laws that have been implemented in ensuring that no harm is brought to the environment  by these mining activities.3 Current laws, such as the National Environmental Management  Act4, Mineral and Petroleum Resources Development Act5, and the South African  Constitution6, have been implemented to regulate such activities, however, challenges with  enforcement hinder effectiveness. This article examines the environmental impacts of mining  in South Africa, the effectiveness of current existing regulatory frameworks and a way  forward in maintaining a balance between responsible mining and maintaining a healthy  environment. 

Introduction 

South Africa is widely known for being rich in mineral resources. In estimation, based on  Gross Domestic Product (GDP) value, it is said to contain the 5th largest mining sector in the  world, with its mining companies playing a key role in the global industry.7 However, despite  attributed success, mining activities have seemingly had a negative impact on the  environment and contributed to social injustices, which are often severe and long term.8 Section 24 of the South African Constitution protects individuals’ right to an environment  that “is not harmful to their health or wellbeing” and supports the protection of the  environment for all generations, and the implementation of legislative frameworks that  prevent harmful environmental practices and support sustainable development.9. This right is  further reinforced by key legislation such as the National Environmental Management Act (NEMA) and the Mineral and Petroleum Resources Development Act (MPRDA), which respectively regulate the exploitation of mineral resources and and environmental principles. However, despite the progress of the statutory frameworks, challenges still persist in  managing harmful mining practices and its effects on communities and the environment at  large, which hinders the effectiveness of these frameworks. This article provides a critical  examination of the effectiveness of the environmental law frameworks in regulating mining  activities in South Africa and suggested reforms, such as strengthening institutions,  improving enforcement and the promotion of community participation, to ensure that the  existing regulations are more effective in their course. 

Legal Framework 

Section 24 if the South African Constitution states that “Everyone has the right— (a) to an environment that is not harmful to their health or wellbeing; and (b) to have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures that— 

(i) prevent pollution and ecological degradation; 

(ii) promote conservation; and 

(iii) secure ecologically sustainable development and use of natural resources while  promoting justifiable economic and social development.”  

Section 2 of NEMA sets out principles for the management of a healthy environment and the promotion of sustainable development socially, environmentally and economically. The Act  also proposes measures that may be taken in instances where individuals or groups of  individuals or institutions purposely perform activities that may potentially be harmful or  hazardous to the environment.10 The MPRDA regulates “equitable access to and sustainable  development of the nation’s mineral and petroleum resources…” In terms of section 38 of the  MPRDA, holders of mining rights and those permitted to carry out mining activities, are  obligated to adhere to implemented environmental regulations, such as those set out in  NEMA, to repair any damage caused to the environment due to mining activities and provide  financial compensation in instances of closure.11 Other legislation, such as the National Water  Act12 regulates any activities that may cause pollution to water resources, and obliges relevant persons to take the necessary measures in preventing “any such polling from  occurring, continuing or recurring. 13 These instruments together create an extensive  legislative framework aimed at protecting environmental rights while allowing exploitation of  resources. 

Judicial interpretation  

South African Courts have also been major role players in the interpretation and enforcement  of environmental provisions. In Fuel Retailers Association v Director-General:  Environmental Management, Mpumalanga,14 an application for leave against a Supreme  Court of Appeal decision was brought to the Constitutional Court regarding environmental  authorities’ obligations when their decisions may be significantly detrimental to the  environment in terms of the Environment Conservation Act15 (ECA) and NEMA. The Fuel  Retailers Association of Southern Africa (the applicant) contested a ruling that would allow a  new filling station to be constructed in White River, Mpumalanga16. The applicants’ argument  was the socio-economic impact and effect on the environment were not put into consideration by the authorities.17 The Constitutional Court had to determine whether the environmental  authorities had been compliant with their obligations to put into consideration socio economic factors, the effects on the existing filling stations and potential effects on the  environment in terms of sections 24 of the Constitution, and relevant provisions of the ECA  and NEMA, as well as the appropriate remedy in such a matter. The court in terms of NEMA,  all developments were required to be sustainable socially, economically and environmentally,  especially those contemplated under section 21 of the ECA, that is developments that may be  substantially detrimental to the environment, like filling stations.18 The court also placed  emphasis on sustainable development, it stated further that “NEMA requires the  consideration, assessment and evaluation of the social, economic and environmental impact  of proposed activities. This requires the assessment of the socio-economic benefits and  disadvantages of proposed activities.”19 The court ultimately ruled that the authorities failed  in their obligations under the constitution and NEMA and overruled the decision of the  authorities to allow the construction of the filling station and ordered a review of the  application.20 

In Bengwenyama Minerals v Genorah Resources21, the court set aside a decision to grant  the party a prospecting mining right in respect of land, after the court found that the  landowner failed in their obligation to consult with community members who resided on the  land in terms of section 10 of the MPRDA22 and highlighted one of the objectives of the Act  which was to give effect to environmental rights guaranteed under section 24 of the  constitution… “by ensuring that the nation’s mineral and petroleum resources are developed  in an orderly and ecologically sustainable manner while promoting justifiable social and  economic development. In terms of section 17(1)(c) of the Act the Minister must grant a  prospecting right if, amongst other requirements, the prospecting will not result in  unacceptable pollution, ecological degradation or damage to the environment.”23 In Baleni v Minister of Mineral Resource24, the Court gave effect to the provisions of the  Interim Protection of Informal Land Rights Act (IPILRA)25 as well as the MPRDA regarding the requirements of consultation and consent from community members. It held that not only  consultation was required in terms of the MPRDA, but the additional obligation of consent  was required from affected community members who resided and/or made use of the relevant  land in terms of customary law. 26 

The High Court in Earthlife Africa Johannesburg v Minister of Environmental Affairs27 highlighted the obligations of ministers to consider climate change impacts of proposed  power stations. It gave effect to section 240 of NEMA, which requires a consideration,  assessment and report of how certain activities may impact the environment, taking into  account factors such as pollution and degradation, before a decision on environmental  authorisation may be made.28 It also gave effect to the National Environmental Management:  Air Quality Act (NEMAQA)29 in which an atmospheric emissions licence is required for the  construction of any infrastructure that impact the environment in any way. “Section 39(b) of  NEMAQA provides that when considering an application for an AEL, the licensing authority  must take into account inter alia the pollution being or likely to be caused by the carrying out  of the listed activity and the effect or likely effect of that pollution on the environment,  including health, social conditions, economic conditions, cultural heritage and ambient air  quality. Likewise, in terms of section 39(c) of NEMAQA, the licensing authority must take  into account the best practicable environmental options available to prevent, control, abate or  mitigate that pollution and to protect the environment from harm as a result of that  pollution.”30 

Critical analysis, recent developments, and a way forward  Through judicial review, it is evident that while the environmental law legislation in South  may appear to be progressive, challenges with implementation and adherence still persist.  Scholars argue that problems cannot be remedied by the law alone. Current legislation has  also been criticised for arousing conflicts with certain environmental protections.31 Though  cases like Bengwenyama Minerals v Genorah have affirmed community participation, it is  often practically challenging, often showing inadequacy in consultation processes.32 

Recent developments, such as the National Environmental Management Laws Amendment (NEMLA) Act 2 of 2022, was implemented with the aim of amending the initial National  Environmental Management Act (NEMA). The provisions of the Act aim to minimise non adherence to environmental laws, with new offences introduced, an increase in penalties and  fines in instances of non-compliance with relevant laws.33 

To address the gaps bright about by non-adherence to environmental legislations, more  stringent amendments to existing legislation may have to be implemented in order to ensure  that environmental as well as the rights of communities are truly protected and taken into  consideration in the future. 

Conclusion  

South Africa appears to have some of the most progressive environmental legislation  globally, with its constitution protecting the right to a healthy environment, given effect by  multiple relevant statutory frameworks. The courts have also played a major role in the  advancement of and enforcement of such legislation. However, challenges with enforcement  and adherence, conflicts with relevant policies and poor community engagement compromise  these achievements. The fulfilment of environmental and societal protection will require  stringent reforms and meaningful community participation to ensure sustainable development  through mining and other related activities. 

Reference(S): 

1. Constitution of the Republic of South Africa, 1996. 
2. Baleni v Minister of Mineral Resources (2019) 2 SA 453 (GP). 
3. Bengwenyama Minerals v Genorah Resources 2010 ZACC 26. 
4. Earthlife Africa Johannesburg v Minister of Environmental Affairs (2017) ZAGPPHC  58. 
5. Fuel Retailers Association v Director General, Mpumalanga (2007) ZACC 13. 6. Gary Rapson, Kirsty Kilmer, and Carma Rossouw, ‘The NEMLA Act- the long awaited shift in South Africa’s environmental legislative landscape is eminent’  (Webber Wentzel, 27 June 2022) https://www.webberwentzel.com/News/Pages/the nemla-act-the-long-awaited-shift-in-south-africas-environmental-legislative landscape-is-imminent.aspx 
6. Interim Protection of Informal Land Rights Act 31 of 1996. 
7. John-Mark Kilkian, ‘Addressing the social impact of mining activities on  communities for sustainability’ (2008) 2008(8) SAICE 22  https://journals.co.za/doi/epdf/10.10520/EJC25978 
8. Making M Pretty and Kola O Odeku, ‘Harmful mining activities, environmental  impacts and effects in the mining communities in South Africa: a critical perspective’  (2017) 8(4) JEL 
9. Michael Kidd, Environmental Law (2nd edn, Juta 2011) 1. 
10. Mineral and Petroleum Resources Development Act 28 of 2002. 
11. National Environmental Management Act 107 of 1998. 
12. National Environmental Management: Air Quality Act 39 of 2004. 
13. Pocket Guide to South Africa, ‘Mineral Resources’ (2012/13) 150, 150  https://www.gcis.gov.za/sites/default/files/docs/resourcecentre/pocketguide/2012/15% 20Mineral%20Resources.pdf 
14. Safety Cloud, ‘Why is Mining Important to Our Economy in South Africa (Safety  Cloud, 25 May 2025) https://safetycloud.co.za/why-is-mining-important-to-our economy-in-south africa/#:~:text=So%2C%20why%20is%20mining%20important,the%20country’s%20 socio%2Deconomic%20future

1 Safety Cloud, ‘Why is Mining Important to Our Economy in South Africa (Safety Cloud, 25 May 2025)  https://safetycloud.co.za/why-is-mining-important-to-our-economy-in-south africa/#:~:text=So%2C%20why%20is%20mining%20important,the%20country’s%20socio%2Deconomic%20fut ure accessed 27 May 2025. 

2Ibid.  

3 Making M Pretty and Kola O Odeku, ‘Harmful mining activities, environmental impacts and effects in the  mining communities in South Africa: a critical perspective’ (2017) 8(4) JEL 14, 14-16.

4 National Environmental Management Act 107 of 1998. 

5 28 of 2002. 

6 Constitution of the Republic of South Africa, 1996.

7 Pocket Guide to South Africa, ‘Mineral Resources’ (2012/13) 150, 150 https://www.gcis.gov.za/sites/default/files/docs/resourcecentre/pocketguide/2012/15%20Mineral%20Resourc es.pdf accessed on 27 September 2025. 

8John-Mark Kilkian, ‘Addressing the social impact of mining activities on communities for sustainability’ (2008)  2008(8) SAICE 22 https://journals.co.za/doi/epdf/10.10520/EJC25978 accessed on 27 September 2025.

9 Constitution of the Republic of South Africa, s24.

10 NEMA 107 of 1998, ss32-34.  

11 MPRDA, s38. 

12 36 of 1998. 

13 Ibid s19.  

14 (2007) ZACC 13. 

15 73 of 1989. 

16 Fuel Retailers Association v Director General, Mpumalanga (2007) ZACC 13, [1].

17 Ibid, [5]. 

18 Ibid, [74]. 

19 Ibid [77]. 

20 Ibid, [105]. 

21 2010 ZACC 26. 

22 Bengwenyama Minerals v Genorah Resources 2010 ZACC 26, [62]. 

23 Ibid, [75]. 

24 Baleni v Minister of Mineral Resources (2019) 2 SA 453 (GP). 

25 31 of 1996.

26 Baleni v Minister of Mineral Resources (2019) 2 SA 453 (GP), [76]. 

27 Earthlife Africa Johannesburg v Minister of Environmental Affairs (2017) ZAGPPHC 58. 28 Ibid, [79]. 

29 39 of 2004. 

30 Earthlife Africa v Minister of Environmental Affairs, [59]. 

31 M Kidd, Environmental Law (2nd edn, Juta 2011) 1, 12-17. 

32 Bengwenyama Minerals v Genorah Resources 2010 ZACC 26, [63]-[67].

33 Gary Rapson, Kirsty Kilmer, and Carma Rossouw, ‘The NEMLA Act- the long-awaited shift in South Africa’s  environmental legislative landscape is eminent’ (Webber Wentzel, 27 June 2022)  https://www.webberwentzel.com/News/Pages/the-nemla-act-the-long-awaited-shift-in-south-africas environmental-legislative-landscape-is-imminent.aspx accessed 29 September 2025.