The court ruled in favour of an application by the McGregor Museum, together with Sol Plaatje University and the University of the Witwatersrand, for a review of the decision by the Department of Mineral Resources to grant a mining permit for Canteen
THE GAUTENG High Court has ruled in favour of an application by the McGregor Museum, together with Sol Plaatje University and the University of the Witwatersrand, for a review of the decision by the Department of Mineral Resources to grant a mining permit for Canteen Kopje.
The court also overturned a decision by the South African Heritage Resources Agency (Sahra) to lift a cease-work order on the site.
The application, handed down on Friday by Judge S Potterill, secures the protection of cultural and historical sites into the future, and ensures that administrative agencies abide by the legislative requirements to protect the country’s heritage.
Canteen Kopje, a historical and archaeological key point at Barkly West in the Northern Cape, was inhabited by Early Stone Age humans and is one of the country’s oldest dated archaeological sites. The pre-colonial history of local BaTswana is reflected at the top of the sequence, as well as the early history of diamond mining.
It was declared a national monument nearly 70 years ago and has since earned international scholarly attention for yielding a stone tool sequence up to perhaps two million years old.
But its ancient and historic gravel also contains diamonds.
An attempt to launch an alluvial diamond mining operation on a portion of the site in 2014 – with a permit from the Department of Mineral Resources – was scuppered when Sahra was alerted and succeeded in imposing a cease-work order.
To the outrage of the archaeological fraternity, the cease-work order was lifted and a Windsorton-based black economic empowerment company, Jacky Wesi Mining, started mining on the site in March 2016.
An urgent application for an interdict was launched by the McGregor Museum to stop the mining.
The interim interdict granted on March 19, 2016 against Jackie M Wesi Mining gave temporary protection to the archaeological site and the interdict was made final in a court order in April 2016.
The Department of Mineral Resources, Sahra and the South African Police Service were co-respondents with the mining company but decided to abide by the decision of the high court and to not oppose the museum’s application for a final court order.
The mining that was allowed to go ahead left a gaping hole in the middle of the site, with artefacts strewn across the damaged surface.
At the same time, the McGregor Museum, jointly with the Sol Plaatje and Wits universities, launched a Review Application to have the DMR permit and Sahra lifting of its cease-works order set aside.
In her judgment, Judge Potterill stated that the DMR decision was influenced by an error of law because the Mineral Petroleum Resources Development Act (MPRDA) does not allow mining in a protected area. “The DMR decision was taken for a reason not authorised by the empowering statute. The exercise of the power was so unreasonable that no reasonable person would have taken it and in this matter is in fact indefensible.”
Regarding Sahra’s decision to withdraw the cease-work order, she stated that the mining permit and the withdrawal of the measure preventing the mining, the cease-work order, were inextricably linked. “When the mining permit is set aside the withdrawal of the cease-work order must also be set aside.”
She pointed out further that Sahra provided no reasons why, as the organisation with the mandate to preserve the site, it withdrew the cease-work order. “It must thus be accepted that it was done on no good causes.”
“The withdrawal of the cease-work order must thus be reviewed and set aside because it was taken unreasonably, contravened the law and because irrelevant considerations were taken into account.
Dr David Morris, deponent for the applicants, welcomed the ruling not just in respect of Canteen Kopje, adding that “it makes it clear that established procedures must be followed, for example, in the provision of heritage impact assessments prior to the issuing of prospecting or mining rights”.
“Balancing development and mining against preserving the nation’s memory should not be taken lightly, and should be addressed with all due consideration and consultation. This is, I believe, a test case that would enhance management of our heritage resources. It’s a great ruling to have had handed down in Heritage Month!”