CAPE TOWN – The Western Cape High Court has declared a warrant used to authorize a search-and-seizure operation at the Tormin mine invalid and set it aside.
Ruling in favour of Australian Mining company Mineral Sands Resources (MSR) on Monday, Judge Owen Rogers said the company had achieved “substantial success” in its application.
MSR brought a review application relating to a search-and-seizure operation at its Tormin mine, on the West Coast, last year.
The operation was authorised under a warrant issued by Vredendal Magistrate CS Kroutz. Government environmental officials, led by the Green Scorpions, carried it out in September. It followed complaints of alleged environmental mismanagement and illegalities in mining operations to extract heavy minerals from the beach.
However, Rogers made it clear that his decision did not preclude a future search-and-seizure operation for the same complaints, if the warrant was properly authorised.
The environmental officials had been looking for evidence relating to five complaints about MSR, namely, that it:
-unlawfully and intentionally or negligently caused significant degradation of the environment, in the form of a collapsed sea cliff directly in front of the mine (the “failing cliff” charge);
-violated the Coastal Act by disposing mine tailings into the sea without a permit (the “dumping” charge); and
-violated the National Environmental Management Act by, without authorisation, developing a jetty (the “jetty” charge); clearing an area of more than one hectare (the “increased footprint” charge); and developing a road wider than four metres (the “road” charge).
Rogers said there had been no egregious conduct in the execution of the warrant, and he refused MSR’s application for evidence seized during the operation to be destroyed.
Instead, he issued a preservation order, in terms of which one full copy of all the evidence seized must be made and held under seal by the Registrar of the High Court until a possible criminal case against MSR has been concluded or the National Prosecuting Authority formally declines to prosecute.
The original documents were all returned to MSR and investigators did not seize or copy any electronic data. All other copies must be destroyed (apart from a copy to be sent to MSR’s attorneys) and an affidavit deposed to this effect.
Crucially, Rogers said that, based on information contained in affidavits presented in court, the charges against the mining company “cannot be said to lack substance”.
Referring to the decision by the Department of Mineral Resources (DMR) to approve MSR’s application to amend its environmental management plan for Tormin in April 2015 – after complaints had been lodged – he wrote:
“Even if some aspects of MSR’s conduct became lawful as from 14 April 2015 (which I doubt), the DMR’s decision of that date did not retrospectively legitimise the activities in question. If MSR took matters into its own hands and only sought the necessary approvals after the event, such conduct is to be strongly deprecated.”
If the cliff failure had been caused or exacerbated by MSR’s unauthorised decision to move primary beach concentrator machinery on the beach to the secondary concentrator plant on the cliff-top site in late 2013, “that is a very serious matter”, he said.
Rogers found the warrant was invalid in respect of the “increased footprint”, “jetty” and “road” charges because the investigation had not been within the mandate of the national environmental inspectors.
This followed legislative changes of December 8, 2014 that saw the introduction of the government’s new One Environmental System for mining. This system gave the department exclusive jurisdiction for compliance monitoring and enforcement of environmental authorisations for all prospecting and mining operations.
In respect of both the “cliff” charge and the “increased footprint”, “jetty” and “road” charges, the warrant was invalid because the department had failed to disclose details of the One Environmental System to the magistrate. It had also not informed him about MSR’s challenge to the department’s authority to conduct the search-and-seizure.
In respect of the “dumping” charge, the evidence presented to the magistrate had been “too confusing and unclear” to give reasonable grounds for suspecting that the offence was being or had been committed, Rogers said.
PHOTO: © Provided by http://www.news24.com Aerial view of Tormin mine on the west coast. Photo from Tormin promotional video.