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Cape Town – Environmentalists have hailed a decision by the Constitutional Court to dismiss Atha Africa’s leave to appeal against a 2018 high court decision to set aside ministerial approvals for a proposed coal mine inside an Mpumalanga Protected Area and Strategic Water Source Area (SWSA).

The Mabola Protected Environment near Wakkerstroom is part of more than 70 000 hectares of grasslands in Mpumalanga declared protected under the Protected Areas Act by the Mpumalanga provincial government in 2014.

Atha-Africa Ventures (Atha) was granted a mining right for coal in 2016 after the declaration and after the area had been identified as a SWSA.

Following opposition from environmental bodies represented by the Centre for Environmental Rights, in November last year, the Pretoria High Court set aside the 2016 decisions of the then ministers of Mineral Resources and Environmental Affairs, Mosebenzi Zwane and Edna Molewa, to permit the new coal mine to be developed inside Mabola, with a punitive costs order against the ministers and the MEC for Environment in Mpumalanga.

In January 2019, the Pretoria High Court refused Atha permission to appeal against the November 2018 judgment.

The Supreme Court of Appeal (SCA) found similarly in April this year.

The Constitutional Court held similarly in a November 6 judgment, and awarded costs against the company.

“The Concourt has considered this application for leave to appeal. It has concluded that the application should be dismissed as it does not engage this court’s jurisdiction, and in any event bears no reasonable prospect of success,” the Constitutional Court judgment read. 

"The coalition defending the Mabola Protected Environment included the Mining and Environmental Justice Communities Network of SA (Mejcon-SA), groundWork, Earthlife Africa Johannesburg, BirdLife SA, the Endangered Wildlife Trust (EWT), the Federation for a Sustainable Environment, the Association for Water and Rural Development (Award) and the Bench Marks Foundation.

Mejcon-SA chairperson Elton Thobejane said: “This is a significant victory. Our courts continue to recognise the importance of the protection of the environment, and our strategic water resources, especially at a time when we are already suffering the impacts of climate change.

‘‘Decisions to authorise coal mines should be critically scrutinised and questioned.”

GroundWork director Bobby Peek said that defending the Mabola Protected Environment was more than an attempt to mitigate further climate change.

“It is also about defending the rights of communities who will be affected by the proposed mining activities.

“This decision sends a strong message to decision-makers that mining and profits cannot come before communities and their sustainable livelihoods,” Peek said.

EWT chief executive Yolan Friedman said South Africa had a strong and robust environmental legislation framework that was often not implemented by the government.

“It is gratifying to see that our courts are prepared to stand firm in their application of the law to protect not only current generations, but also future generations from irreparable harm to our environment. 

"Coal mining is being phased out globally for its devastating environmental and climate impacts,” Friedman said.

Atha did not respond to requests for comment by deadline.

Cape Times