Regional & International Case Law

These are one of the leading and most influential case law within Africa

Case Law Jurisdiction Subject Status Decision Link

Tanzania One Mining Ltd. Vs. Andre Venter

Tanzania

Jurisdiction, Labor

Decided.

In this case, the mining company sought revision of Arbitrators award which was procured on 25/8/2009.  The application is based on four grounds which were challenging the jurisdiction of the arbitration commission to entertain the case which went to the core of determining the justifiability of admitting the termination letter issued by the applicant against the defendant. The court ruled in favor of the applicant on the grounds that it had no jurisdiction since the matter was entertained out of time.

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African Barrick Gold lawsuit (re Tanzania)

United Kingdom

Human Rights

Decided.

On 30 July 2013 a group of 12 Tanzanians filed a lawsuit in UK High Court against African Barrick Gold and North Mara Gold Mine Limited (NMGML).  The plaintiffs claim that the companies are complicit in the killings and injuries of villagers by police at the North Mara Mine in Tanzania.   African Barrick Gold then initiated an out of court settlement which was accepted but terms remain undisclosed.

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Anglo Operations Ltd V Sandhurst Estates (Pty) Ltd (2006) 1 ALl Sa 230 (T)

South Africa

Relationship between mineral rights holder and the surface owner. “Land Rights’

Decided.

In this case, the applicant sought to be allowed to utilize a certain portion of the respondent's property for open cast mining and to construct stream diversion. The respondent used his land for farming purposes. The mining company established that part of the coal field extended to the respondents farm. The applicant alleged that it needed optimal utilization of the coal for commercial purposes as shown in the mining concession granted to it by the government. The court rejected the notion and found that private property rights should not be violated as they were for commercial purposes. The case was thrown out. This is a decision that mainly deals with the Relationship between the mineral rights holder and the surface owner as regards the concept of ‘lateral support’. The concept of lateral support  is  a  very  broad  one  that  includes  adjacent  (implicating  land uses   that   affect  neighboring   properties)   and   subjacent   support.

(Implicating land uses that affect the surface).

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Bareki & Anor V Gencor Ltd & Others 2006 (1) Sa 4 32 (T)

South Africa

Environmental rights.

Decided

Between 1976 and 1981, the Griqualand Exploration and Finance Co (Pty) Ltd (Gefco, the majority shareholder of which was Gencor) undertook operations to mine asbestos at the Bute Asbestos Mine. Mining activities were discontinued sometime between 1981 and 1985. The plaintiffs alleged that over this time Gefco and Gencor caused significant pollution in the mining and surrounding areas by the distribution of asbestos fibers. The remains of mining were still present in the form of asbestos dumps. He plaintiffs alleged that this pollution constituted a serious health risk to residents and occupiers of the areas concerned, and a significant threat to the environmental integrity of the region. The plaintiffs claimed that Gefco/Gencor and the Government (as the owner of the land), were responsible for rectifying the pollution and/or degradation. The court ruled in favor of the plaintiffs and the mining company forced to clean up. This case is notorious in environmental circles for being the judgment that failed to confirm the retrospective application of s 28 of the National Environmental Management Act 107 of 1998 (NEMA). The basis for the court’s finding was the common law presumption against retrospectivity, linked to the nature of the obligations set out in s 28. The court found that the obligation to take reasonable corrective measures in relation to pollution were strict (i.e. fault in the form of negligence or intention was not a requirement to establish liability) and possibly even absolute (lawfulness was not a requirement).

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Ca Visser Delwerye (Edms) Bpk V Du Plooy And Others; In Re Du Plooy And Anor V Minister Of Minerals & Energy & Others [2006] 2 All Sa 614 (Nc)

South Africa

Right to Information

Decided

This case is significant for clarifying the obligation of the Department of Mineral Resources (then the Department of Minerals and Energy) to provide information to parties that would prevent them from needing to resort to court proceedings. In late 2003, Mr Christiaan du Plooy (a subsistence miner) had been granted a mining authorization to mine for diamonds in respect of land identified on his application as ‘Longlands’-an unsurveyed tract of land owned by the State in the Northern Cape. The permit was granted in terms of the Minerals Act 50 of 1991, a day before the Mineral and Petroleum Resources Development Act 28 of 2002 (MPRDA) came into effect. By mid-2005, however, it transpired that he was mining illegally as the land in question fell within claims held by the applicant, Visser Delwerye. On 6 May 2005 Visser Delwerye initiated legal proceedings against Du Plooy claiming spoliatory relief and requesting that a temporary interdict be granted pending the finalization of a separate application for declaring the mining permit held by Du Plooy as void. The court found that the DME should be burdened with by far the greater proportion of the blame for the fact that a dispute arose between Visser Delwerye and Du Plooy.  The court not only found that the officials in the Department should have picked up the error in the application regarding the area to be mined, but also that the information necessary to resolve the dispute was in thepossession of the Department and they simply Failed to make this information available to the parties to prevent the dispute going to court.

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De Beers Consolidated Mines Ltd V Ataqua Mines (Pty) Ltd [2007] Zafshc 74 (13 December 2007)

South Africa

Mining rights, Land Access

Decided

The applicant sought access to land containing diamond reserves claimed by the respondents. In this case, In May 1887, the mining operations at Jagersfontein were conducted by the New Jagersfontein Mining and Exploration Company Ltd. (“the New Company”). During 1932, the New Company became part of the applicant’s group and the applicant became its secretary. Also in 1932, owing to the prolonged depression and flooding, mining operations were closed down. Treatment of accumulated pulsated tailings in the recovery plant continued up until the end of May 1932. As from January 1940, the applicant leased the New Company’s assets and operated the mine for its own account. No mining was done owing to the Second World War, but the re-treatment of old pulsated gravels was continued up to October 1940. Shortly thereafter the mine was closed down and refitted and re-equipped with a new reduction plant. The reconditioned Jagersfontein Mine, which had been shut down for 17 years, recommenced production in July 1949, and continued until 1971, when the applicant ceased the mining operations of the New Company. At the time, the applicant had full knowledge of the fact that the tailings dumps contained diamondiferous material which could, when economic circumstances were conducive to further exploitation, again be the subject of further mining operations. The mining right had expired, and the alleged rights to continue with extraction was not upheld by the court.

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Director: Mineral Development, Gauteng Region & Another V Save The Vaal Environment (Pty) Ltd [1996] 1 All Sa 2004 (T)

South Africa

Environmental rights

Decided

This was one of the first pleasing cases grounding the new

Environmental jurisprudence in post-apartheid South Africa. The case is now probably most useful for its obiter remark that directly associates the principle of sustainable development with the issuing of a mining license. During May 1996 Sasol Mining urgently needed to extend its coal mining activities into an area comprising three farms in the Sasolburg district that fronted the Vaal river. It had been established that the only feasible manner of mining for coal in that area was by open-cast mining. Sasol Mining accordingly applied to the Director: Mineral Development, Gauteng Region for a mining license in terms of s 9 of the Minerals Act 50 of 1991. While the mining license was still under consideration Save raised the contention with the Director that they were entitled to be heard in opposing Sasol’s application for a mining license. In March 1997 the Director informed Save that he was not obliged to hear their concerns at that stage, nor was he prepared to do so. In May 1997 he issued a mining license to Sasol Mining in respect of the envisaged open-cast mine. Save successfully took the Director’s decision to issue the mining license on review in the Witwatersrand Local Division (WLD). The Director and Sasol Mining accordingly took this decision on appeal to the Supreme Court of Appeal (SCA).  The court rejected the applicats prayers of being exempted to submit environmental rehabilitation procedures and upheld the right to a clean environment

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Es Carpment Environment Al Protection Group & Wonderfontein Environmental Commit Tee VDepartment Of Water Affairs & Exarro Coal(Pty) Ltd, 2011(Unreported, Wt 03/08/2010)

South Africa

Right to sue on issues Human Rights and Environmental rights violations (Locus Standi)

Decided

The comments set out in the case of Gideon Anderson t/a Zonnebloem Boerdery v Department of Water and Environmental Affairs & another 2006 (Unreported, WT 24/02/2010) regarding the approach of the Water Tribunal to the issue of locus standi apply similarly to this case. The case was concerned with appeals/reviews of three cases in which the Water Tribunal had decided that the appellants had no locus standi. The matter was framed as both an appeal and review because the NWA provides for an appeal to a court on questions of law against decisions of the Water Tribunal. Although the appellants had decided to bring reviews of these decisions, Tuchten J pointed out that a consideration of the review would only be necessary if the appeal failed. In addition there were a number of interlocutory applications for condonation. While initially opposing the relief sought, the Department of Water Affairs (DWA) later withdrew. A settlement was reached with Exxaro Coal, and the Water Tribunal was not functional at the time of the hearing. This left WER Mining and Xstrata Alloys as the principal respondents in the case. The appellants sought to appeal to the Water Tribunal. The Water Tribunal found that the appellants did not have the requisite standing and dismissed the appeals, without pronouncing on their merits. Thereafter, the appellants approached the High Court for appropriate relief. The appeals were upheld with the decisions in each case

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Joubert & Others V Maranda Mining Co (P Ty) Ltd 2010 (1) Sa 198 (Sca)

South Africa

Public participation and mineral rights

Decided

This case provides guidance on when a mining rights holder acquires a right of access to the land upon which the relevant minerals are located. It is clear that this right only ‘solidifies’ once there has been compliance with all the provisions relating to public participation (which includes consultation with I&APs in the lead-up to the granting of the right and after a mining authorization is granted but before operations commence). The issue revolved around a gold mine that was originally worked in the 1890s, but then abandoned. The respondent had acquired the mineral rights to this mine in February 2005 from another company and subsequently applied to the Minister of Minerals and Energy for a prospecting right and mining permit (as the area where the gold was to be found was less than 1,5 hectares in extent). At the time the respondent acquired the mineral rights, an entity entitled ‘Come Lucky’ was the owner of the land on which the mine was located. By February 2008, however, the land had been sold and transferred to the Sanwild Wildlife Trust (it appears that the Trust had been leasing the land until then). The company tried to access the land but in vain. Nothing came of these initiatives and the respondent accordingly launched urgent proceedings aimed at interdicting and restraining the appellants from refusing them access to the relevant piece of land. The North Gauteng High Court granted such final relief on 11 April 2008. They appealed the decision. The court found no merit in their submission and the appeal was dismissed.

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London And S.A Exploration Co. V Rouliot (1890 –91) 8 Sc 74

South Africa

Land rights on adjacent land

Decided

In this case, The appellant company owned the farm Dorstfontein on which was situated the Du Toit’s Pan mine (this mine contained diamondiferous soil). The respondent represented a joint stock company which leased 210 claims from the appellant company. The claims had been worked by the respondent company for many years and in March 1888 it appeared that a part of the claim had reached a depth in excess of 260 feet. He respondent apprehended that if he continued working, soil from the appellant’s land would then have fallen into the respondent company’s claim thus endangering the works. He accordingly broke into and entered the ground of the appellant adjoining the claims leased to the respondent company and dug away. The appellant company thereupon sued the respondent company in the High Court of Griqualand West for the sum of £10 000 for an alleged trespass. The respondent company’s defense was that the ground had become dangerous to the working of its claims and of necessity they were forced to remove it. The court dismissed the application for trespass. This case is significant for affirming a right to lateral support between adjacent pieces of land. The import of the precedent is that ownership of land includes a ‘natural’ right to lateral support of one’s land from adjoining pieces of property.

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Silicosis Case

South Africa

Health and safety

Decided.

South Africa gave the green light on Friday for class action suits seeking damages from gold companies for up to half a million miners who contracted the fatal lung diseases silicosis and tuberculosis underground. The High Court decision sets the stage for protracted proceedings in the largest class action suits in Africa’s most industrialized country. Analysts have said the suits could cost the gold industry hundreds of millions of dollars. Judge Phineas Mojapelo said workers who had died of the diseases could be included in the suits, with any damages paid to family members, and that each mining company should be held liable separately for any damages

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Shell lawsuit (re oil spills & Bodo community in Nigeria)

London High Court

Oil spillage, land rights, environment

Decided.

Members of the Bodo community in Nigeria filed a lawsuit against Shell in London High Court on 23 March 2012, seeking compensation for two oil spills, which occurred in 2008 and 2009 in the Niger Delta.  The 15,000 plaintiffs ask for compensation for losses suffered to their health, livelihoods and land, and they ask for clean-up of the oil pollution.  They allege that the relevant pipelines caused spills because they were over 50 years old and poorly maintained, and that Shell reacted too slowly after being alerted to the spills. On several attempts, Shell had attempted to settle the case out of court but its proposed terms kept being rejected on the basis that it was too low. Shell agreed a £55 million out of court settlement in January 2015.  £35 million will be split between those impacted by the spill who will each receive £2,200, and £20 million will go to the community.

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American Mining Congress v. Mine Safety & Health Administration995 F.2d 1106 (1993)

United States Court of Appeals for the District of Columbia Circuit

Health and safety

Decided

In this case, a miners' organizations petitioned for review of Program Policy Letters (PPL) of Mine Safety and Health Administration, stating agency's position that certain x-ray readings qualified as diagnoses of lung disease within meaning of agency reporting regulations. The Court was called upon to determine whether the  Program Policy Letters on the issue of x-rays was an interpretive rule, in which case it would be valid, or a legislative rule, in which case it would be invalid (for not being enacted in accordance with the Administrative Procedure Act). The court held that The court concluded that the PPLs were interpretive rules, therefore the petitions for review were improper.

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American Mining Congress v. EPA Citation: 20 ELR 21415

United States of America

Jurisdiction, Health, safety and environment

Decided.

American Mining Congress and other trade associations representing mining and oil refining interests (plaintiffs) filed a petition for review in federal court challenging an Environmental Protection Agency’s (EPA) (defendant) rule amending the definition of “solid waste” under the Resource Conservation and Recovery Act of 1976 (RCRA). EPA’s authority under the RCRA was limited to regulating “hazardous waste,” a subset of “solid waste,” and defined as “any garbage, refuse, sludge from a waste treatment plant, water supply treatment plant, or air pollution control facility and other discarded material….” EPA modified the definition of “solid waste” to include material that is “a manufacturing or mining by-product and sometimes is discarded” which encompassed recycled materials. Plaintiffs allege the EPA exceeded its authority in altering the definition of “solid waste” under the RCRA. The court holds that although the Environmental Protection Agency's (EPA's) decision to relist six wastes generated from metal smelting operations as hazardous was within its authority under the Resource Conservation and Recovery Act (RCRA), EPA did not adequately explain its decision

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American Mining Congress, Petitioner, v. Ray F. Marshall, Secretary of Labor, U. S. Department Of labor; and United States Department of Labor; and Robert B.lagather, Assistant Secretary for Mine Safety and Health, U.S. Department of Labor; and Mine Safety and Health administration, U. S. Department of Labor, Respondents, 671 F.2d 1251 (10th Cir. 1982

U.S. Court of Appeals for the Tenth Circuit

Jurisdiction, Mine Health and Safety

Decided.

American Mining Congress, challenged the promulgation of rules by the Secretary of Labor under the Federal Mine Safety and Health Act (MSHA), 30 U.S.C. §§ 801-960 (1976 & Supp. III 1979), on both substantive and procedural grounds. It was held that the Secretary's Strategy for Implementation is not a substantive rule to which the APA's notice and comment provisions apply. It was further held that the Secretary complied with all the necessary procedural requirements in promulgating the area sampling regulations. Finally, we hold that the area sampling regulations are not arbitrary and capricious. We therefore dismiss the petition for review.

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United States v. North American Co. 253 U.S. 330 (1920)

Supreme Court of the United States of America

Jurisdiction, compulsory acquisition of land

Decided.

This suit was brought by the North American Transportation & Trading Company in the Court of Claims on December 7, 1906. The petitioner seeks to recover the [253 U.S. 330, 332]   value of a placer mining claim situated on the public land near Nome, Alaska, which is alleged to have been taken by the government on December 8, 1900, and also compensation for use and occupation thereof after that date. Held that the action of the general in taking possession of the land was tortious, and no liability on the part of the government was created until the action was approved by the Secretary of War, and since this approval occurred within six years before the commencement of this suit, the suit was not barred by § 156 of the Judicial Code.

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Choc v. HudBay Minerals Inc. & Caal v. HudBay Minerals Inc.

Canada

Human rights, duty of care

ongoing

Lawsuits against Canadian company HudBay Minerals Inc. over human rights abuse in Guatemala. Members of the indigenous Mayan Q’eqchi’ population from El Estor, Guatemala were pursuing three related precedent-setting lawsuits in Canadian courts against Canadian mining company HudBay Minerals over human rights abuses at HudBay’s former Fenix mining project in Guatemala. The women alleged that the companies were complicit in the gang rapes suffered by the women at the hands of security personnel hired by the defendant companies.  The women claim that the gang rapes occurred in January 2007 during forced evictions of members of the Mayan Q’eqchi’ community living in El Estor.  The defendant stated that the case was time bared and thus should be dismissed. The court did not agree with the respondent and ordered that they proceed to full trial. The case is ongoing.

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