p style="text-align: left;">Just over a year before, in early June 2012, the national Department of Water Affairs had ordered the company to cease mining activities because it was operating without a water use licence at Weltevreden Farm – a prerequisite for obtaining legal mining permissions.
Though the facts remained unchanged, Exxaro successfully litigated the issue in the North Gauteng High Court, on the basis that the disbandment of the Water Tribunal left them without a legal channel of appeal, as required in the National Water Act.
The company denied that mining the wetland constituted an illegal environmental activity, but investigations show that Exxaro remained in violation of the requirements of the Act by mining without a valid water use licence at Weltevreden – a criminal offence, according to the legislation.
The wetland, about eight kilometres away from Delmas on the Mpumalanga Highveld, is a critical resource for agriculture and water birds.
“This was once productive dairy country, filled with many small producers,” said farmer Peet Bezuidenhout. “In those days, the mines did not know or care about the coal reserves below.
“Farmers sustainably relied on the natural springs, wetlands and pans for water for their livestock. The pan at Weltevreden farm was one of these important water sources.”
Laying dry the wetlands
Exploration in the area began in 1989 at nearby Leeuwpan. This wetland was heavily polluted when the first open cast mine was developed there in 1992.
Mining rights changed hands as the result of various mergers and acquisitions involving companies like Iscor, Kumba Resources and Eyesizwe Coal. In 2006, Exxaro emerged as the rights-holder of the mine – with 143-million tonnes of coal.
The company, which employs about 500 people at Leeuwpan and produces an average of three million tonnes of coal a year there, expanded its coal-mining operation on to neighbouring farms Kenbar, Moabsvelden, Witklip and Wolvenfontein.
Towards the end of 2011 local farmers noticed that Exxaro had dug a trench around the previously unspoilt Weltevreden Pan. The strategy, well known for laying dry a wetland in preparation for mining, led to the farmers laying official complaints with the Department of Water Affairs.
Building a trench around the Weltevreden Pan effectively prevents rainwater from entering the wetland, in preparation for mining activities. To do so, Exxaro required a water use licence from the department, as well as specific permission to “impede the flow of water” from a watercourse, under section 21c of the National Water Act. The same permissions would be required for actively mining inside the pan.
A water use licence should identify exact coordinates of the use of water from water resources, water storage facilities and changing the course of rivers, altering the bed or banks of rivers, wetlands, mine water dams, etc.
Failure to do so potentially results in criminal prosecution for unlawful water use, including fines or imprisonment of up to 10 years. A court may also order compensation for affected people, awarding damages and remedies.
Exxaro’s water use licence, a copy of which we have seen, excludes the relevant coordinates. (view here)
Mapping mining rights. The red area shows mining rights granted, the yellow area shows the area being mined without a licence
Mining legal trenches
Department officials performed a site inspection on May 16 2012 and issued a “stop order” in June 2012 – a directive demanding proof of authorisation to mine the pan, failing which mining activities had to cease. The order cited “unlawful mining activity in a watercourse on portion 7 of Weltevreden”, citing coordinates “S 26°07’53.3 E 28°46’0.1”
The directive stated, among others, that Exxaro must stop construction (preparation for mining) within the 100-year floodline and within a 500m radius of the boundary of the wetland.
Exxaro spokesperson Hilton Atkinson challenged the specific allegations, stating: “Exxaro reaffirms its contention that it has the authorisations to mine in the Weltevreden wetland area as part of the Leeuwpan mine’s water use licence.”
Linda Page, the department’s media officer, stated: “[The department] does not condone any activities that compromise our water resources [and] is bound to take action against any company or individual contravening the conditions of their licence and/or the provisions of the National Water Act.” She said the department was in the process of investigating the complaints.
Exxaro appealed to the Water Tribunal, a body established by the National Water Act and appointed by Minister of Water Affairs Edna Molewa.
In August 2012 the Water Tribunal was disbanded and Molewa failed to appoint new members to the tribunal, leaving the channel for appeal in a state of limbo. Page said the department had advertised for nominations, including that of the chairperson, to begin the process of re-appointing the tribunal.
The lack of a Water Tribunal, central to appeals as legislated in the NWA, led the DWA to pursue mediation instead.
This was rejected by Exxaro.
“Exxaro has been advised by its lawyers that this [mediation] directive does also not comply with the law and may result in further delays,” said Atkinson.
In response to inquiries from the Democratic Alliance in the national parliamentary assembly in August 2012, Molewa said mining at the Weltevreden pan had ceased and all equipment had been removed. She confirmed that the Department of Water Affairs had not authorised mining of the Weltevreden pan and wetland.
One month later, on September 28, our investigations showed the mining company had started up operations at the pan. Soon after we sent images to a local newspaper, which forwarded them to the department, Exxaro once again ceased operations.
The company opted for litigation, proceeding with an urgent application at the High Court in late November 2012, with the intention of setting aside the “stop order” directive. The company said the department had “acted outside the law by suspending the operations of the Water Tribunal… Exxaro has no independent body to appeal the directive issued against its Weltevreden operations.”
Exxaro won the case and the directive was set aside.
In spite of this success, the company did not immediately advance further into Weltevreden pan.
The department applied for leave to appeal the court ruling, and the case was set down for March 19 2013. But at the hearing the department withdrew its application.
On June 24 Exxaro recommenced mining operations at Weltevreden. Atkinson commented: “Exxaro’s stance is that it has the required water licence authorisation to mine the area. The mining is authorised.”
Future waste lands
By its own admission, Exxaro agrees that opencast mining at Weltevreden and Moabsvelden (Block OWM) will destroy the wetlands.
On its website, under a section titled “Sustainability”, the company says in the integrated water and waste management plan that accompanied its licence application, Exxaro specifically stated that: “Probable impacts on the wetland within the boundaries of Block OWM include the total removal of the soil and vegetation, and thus the permanent destruction of the existing wetlands and the associated habitats for fauna and flora. If the wetlands are removed, the likelihood of successfully rehabilitating and restoring the wetlands subsequent to mining is very low; thus, the impact would be permanent.
“Destruction of the wetlands will take place due to opencast mining activities.”
Exxaro will comply with the rehabilitation conditions set out in the licence, the statement reads: “Exxaro is required to embark on a systematic long-term programme to restore natural watercourses to environmentally acceptable and sustainable conditions after conclusion of the mining operations.”
Multiple attempts were made by Oxpeckers to confirm that Exxaro does indeed have a valid water use licence for Weltevreden, including official requests under the Promotion of Access to Information Act. But the company failed to provide evidence that the farm and wetland called Weltevreden are accounted for in the Leeuwpan water use licence that Exxaro has produced as proof of their legal occupation and mining at Weltevreden.
And, contrary to the company’s statements, the directive by the Department of Water Affairs’ compliance monitoring and enforcement division still stands that Exxaro’s operations at Weltervreden pan are not in legal accordance.
Environmental organisation groundWorks said it appeared Exxaro was destroying a wetland in defiance of South Africa’s legislation. “The wilful destruction of a wetland displays a level of moral turpitude which is all too typical of the mining industry.
“Exxaro clearly believes that if you pay enough lawyers, you get legal impunity. It is disturbing that the courts seem predisposed to let them get away with it.”
Back to square one?
In late November 2013 Beeld newspaper reported that High Court judges Niel Tuchten and Margaret Victor had directed the Water Tribunal to review the complaints of three non-governmental organisations about non-compliance with the National Water Act by three mining companies – including Exxaro.
The Escarpment Environmental Protection Group, the Wonderfontein Community Association and the Langkloof Environmental Committee [affiliates of the Federation for a Sustainable Environment] brought a case against the Department of Water Affairs and the three mining companies.
To comply with the judgment, the department will have to reinstate the Water Tribunal. Exxaro will then have the opportunity to appeal to the Water Tribunal, and the “stop order” directive against mining operations at Weltevreden may again become enforceable.
Franz Fuls is a researcher collaborating with the Centre for Civil Society, a partner of Environmental Justice Organizations, Liabilities and Trade, based at the University of KwaZulu-Natal. Research for this article was funded by the Forum for African Investigative Reporters