High Court refuses mining company’s leave to appeal
A strategic water source area already protected by law is protected by the courts.
Sasha Planting / 23 January 2019 00:41
Mining companies have left a heavy imprint on Mpumalanga, a biodiverse region vital to SA's water supply. Civil society is fighting back. Image: Supplied
Yesterday the North Gauteng High Court refused mining company Atha Africa leave to appeal the court’s decision to set aside permissions for a new coal mine inside a declared protected environment.
This is a victory for the eight civil society organisations represented by the Centre for Environmental Rights (CER), which have opposed the mining venture since 2015. At the time, then minister of mineral resources Mosebenzi Zwane and the late minister of environmental affairs, Dr Edna Molewa, granted Atha-Africa Ventures – an Indian-owned mining company – the right to mine coal in an area in Mpumalanga that was declared a Protected Environment in January 2014.
Known as the Mabola Protected Environment, it was declared such by the Mpumalanga provincial government as part of more than 70 000 hectares of protected area in the Mpumalanga grasslands. This followed years of research and planning by a number of government agencies, including the department of environmental affairs, the South African National Biodiversity Institute and the Mpumalanga Tourism & Parks Agency.
In 2016, without public consultation and without notice, the two ministers gave their permission for a large 15-year coal mine to be built inside the Mabola Protected Environment.
This was move was greeted with dismay by South Africa’s green lobby.
The Mabola Protected Environment is situated outside Wakkerstroom in Mpumalanga and falls within what has been classified as one of 22 Strategic Water Source Areas by the South African National Biodiversity Institute, a government body, and the Council for Scientific and Industrial Research (CSIR). Strategic Water Source Areas constitute just 8% of SA’s land but provide more than 50% of our freshwater.
“The organisations opposing this particular mine do so because the proposed mine would be inside a declared protected area and a strategic water source area: with acid mine drainage estimated to require water treatment until 2097, the mine would threaten water security not only in the local area but in the region,” says CER attorney Catherine Horsfield. “The damage that this mine would do to water resources cannot be undone. The organisations that have brought this action are deeply committed to job creation and improving the quality of life of local people, but we also know that instead of bringing wealth and livelihoods, coal mining has devastated the lives, health and well-being of communities across the Highveld.”
In November 2018 the Pretoria High Court set aside the ministers’ approval and referred the decision back to them for reconsideration.
Relying on the decisions of others
The court set aside the decision on the basis that the decision-making process was not transparent, was procedurally unfair (there was no public participation process) and the ministers failed to independently and distinctively apply their minds to the decision, instead relying on the decisions of other decision-makers in relation to other approvals.
In light of the lack of transparency and public participation, the court handed down a punitive costs order against the ministers and the MEC.
Yesterday, the court heard Atha Africa’s application for leave to appeal the November decision to a full bench of the high court. The court refused Atha’s application and awarded costs against it.
The ministers of mineral resources and environmental affairs, as well as the Mpumalanga MEC, had also applied for leave to appeal the court’s decision but withdrew their application yesterday. The court ordered that the state pay the coalition’s wasted legal costs in preparing to oppose that application.
The coalition that brought the court application to set aside permissions for the proposed coal mine comprises the Mining and Environmental Justice Community Network of SA, groundWork, Earthlife Africa Johannesburg, BirdLife SA, the Endangered Wildlife Trust, the Federation for a Sustainable Environment, the Association for Water and Rural Development, and the Bench Marks Foundation.