On the 2nd of September 2014 the Western Cape High Court ordered De Beers Consolidated Mines Limited to file answering papers in an application brought by the Non-Governmental Organisation (NGO) Conservation South Africa (CSA) within five days, or have its opposition to the disclosure of records about Namaqualand Mines struck out.
In April 2013, using the Promotion of Access to Information Act (PAIA), CSA sought access to records from the Department of Mineral Resources (DMR) about the sale of Namaqualand Mines by De Beers to Trans Hex Limited a subsidiary of Emerald Panther Investments 78 (Pty) Ltd. Amongst other things, CSA wanted access to:
• the financial provision for environmental rehabilitation at Namaqualand Mines;
• the record of decision by the Minister of Mineral Resources consenting to the transfer of the relevant mining and prospecting rights to Emerald Panther; and
• all environmental and health and safety compliance inspection reports and directives issued by the DMR, including those pursuant to the deaths of artisanal miners at its mines in June 2012.
The DMR refused CSA’s requests under PAIA in June 2013 on the incongruous basis that the documents contain information that could cause harm to the financial or commercial interests of a third party. The Minister of Mineral Resources failed to decide CSA’s subsequent internal appeals against each of the refusals by the DMR.
In March 2014, represented by the Centre for Environmental Rights (CER), CSA instituted High Court proceedings against the DMR, citing also De Beers, Trans Hex and Emerald Panther for their interest in the matter. In response to the launch of this High Court application, DMR initially agreed that the information sought by CSA was “not privileged” and undertook to release the records. When De Beers opposed the release of the information, the DMR withdrew its undertaking to provide the information, but agreed not to oppose CSA’s application.
On three occasions since court papers were issued, De Beers has, through its attorneys, provided various documents to CSA, most of which do not answer the PAIA requests. Notwithstanding, De Beers has to date failed to file an answering affidavit to explain why any of the requested documents should not be released to CSA by the DMR.
The current order from the High Court requires De Beers to file its answering affidavit by the 9th of September 2014, failing which De Beers will be barred from delivering answering papers and its opposition to the release of the records will be struck out.
In an affidavit filed at court, CER attorney Catherine Horsfield stated: “De Beers clearly seeks to delay the determination of the main application, probably to ensure that the transfer of Namaqualand Mines to Emerald Panther is finalised prior to the disclosure of the requested records. In either event, the delay is obstructive and vexatious, and CSA is being considerably prejudiced as a result.”
“Legal obligations to disclose this information aside, good environmental governance and corporate accountability require the public to be able to access information about the regulation and compliance of mining companies. It is important to note that the DMR was eventually willing to make this important information available to the public, only to have its good intentions thwarted by De Beers,” says Melissa Fourie, CER Executive Director.
Sarah Frazee, CEO of CSA, says that “given De Beers’ stated corporate social responsibility commitments, its conduct in relation to Namaqualand Mines has been extremely disappointing.”