Mabola court judgement: a "victory" for environmental justice
A "strong victory" and a precedent-setting judgement. That's how a coalition of civil society organisations have hailed a landmark ruling setting aside the state's permission to allow an Indian-owned company to start a new coal mine in the Mabola Protected Environment (MPE) near Wakkerstroom in Mpumalanga.
"The legal precedent which was established is welcomed and shows the growing emphasis being placed on consultation and the provision of access to information and transparency during decision-making processes," said Mariette Liefferink, chief executive of the the Federation for a Sustainable Environment (FSE).
The coalition - Earthlife Africa, the Mining and Environmental Justice Community Network of South Africa (MEJCON-SA), the Endangered Wildlife Trust (EWT), BirdLife South Africa, the FSE, the Association for Water and Rural Development (AWARD), the Bench Marks Foundation and groundWork - had challenged the Ministers' approval.
"It enforces the fact that mining in protected areas is prohibited and although it may be allowed if both the Minister of Mineral Resources and the Minister of Environmental Affairs approve it, allowance must be made for potential conflicts to be properly ventilated and identified, and that these must be taken into account when the administrative discretion to grant or refuse mining applications are made," said Liefferink.
In 2016, former Mineral Resources Minister Mosebenzi Zwane and late Environmental Affairs Minister Molewa quietly gave the green light to Yzermyn, the planned underground coal mine of Atha-Africa Ventures, linked to former president Jacob Zuma.
Their signatures marked the first-ever approval for a new mine to be permitted in a protected environment in SA. Yzermyn is planned to run beneath the 8772ha MPE, which was declared by Mpumalanga authorities in 2014.
It is located within the Ekangala-Drakensberg, which is classified as one of the country’s 21 strategic water source areas as it gives rise to the Vaal, Pongola and Tugela rivers. The MPE is a national freshwater ecosystem priority area and a critical biodiversity area.
On Thursday, the High Court in Pretoria set aside the Ministers' permission and referred the decision back to the two Ministers for reconsideration on the basis that they did not take their decisions in an open and transparent manner or in a way that promoted public participation. The decisions were therefore procedurally unfair.
The Court, too, criticised the Ministers for relying on the processes followed by other decision-makers instead of exercising their discretion under the Protected Areas Act independently, referring particularly to their failure to apply a cautionary approach when dealing with "sensitive, vulnerable, highly dynamic or stressed ecosystems" as "an impermissible abdication of decision-making authority".
Judge Norman Davis said: "My initial impression of the Ministers' method of exercising their discretion was simply to apply a tick-box approach, namely had all other organs of state given their approvals? If so, then permission is granted ... It is to my mind, astounding that in an admitted novel procedure, the Ministers decide (if indeed they had done so) that it would be procedurally fair not to hear the applicants while well-knowing that each and every preceeding authorisation had been hotly contested."
John Capel, the executive director of the Bench Marks Foundation, said yesterday: "The coalition's victory forces the Department of Mineral Resources and the Department of Environmental Affairs (DEA) to do their job properly, number one. Secondly, it forces them to do proper consultation and to be fully transparent. Thirdly, it gives us hope that we can now protect our water catchment areas, which feed into a number of our main rivers in South Africa.
"It can't be mining at any cost. Mines create huge damage and then they run away. We have 6000 abandoned mines in this country, wreaking havoc."
Earthlife Africa's Makoma Lekalakala lauded the court victory. "I'm just worried about how continuously our government officials are disregarding the rights of people and nature ... We shouldn't have to keep reminding them through the courts."
Sharon Pollard, of AWARD, concurred. "This is an incredibly important ruling because it's precedent setting. I think it's quite important that the government and especially the DEA, which is meant to be the custodian of our natural resources, actually acts as a custodian.
"These strategic water source areas are there for a reason. They are not drummed up as a kind of a greenie thing. We're facing a future where water is obviously more of a scarce resource, threatening people's livelihoods and the economy of the country. We've had Cape Town, we have the Giyani experience, the Olifants river is about to stop flowing and so protection of these strategic water sources areas are a deeply socio-economic and environmental issue."
In his judgement, Judge Davis said there was "a disturbing feature in the conduct of the Ministers or their departments, which gave rise to one of the complaints of a lack of transparency and it is this: the primary beneficiaries of the mining activity sought to be permitted are based offshore and their local BEE component is, to an extent, politically connected.
"There was therefore, apart from the statutory requirements, a compelling need for environmental decision making to take place openly".
Atha-Africa Ventures said it confirmed receipt of the judgement. "We will discuss the judgement along with its implications for the company with our legal team and will issue a statement thereafter."
Catherine Horsfield, attorney and mining programme head at the Centre for Environmental Rights, which is representing the coalition, said the judgement confirmed to the government and to all developers proposing heavily polluting projects in environmentally sensitive areas in South Africa that exceptional circumstances must be shown to exist to justify that proposed development.
"South Africa is a water-stressed country, and the MPE, where the coal mine would be located, has particular hydrological significance for the country as a whole. The judgement also confirms the foundational principles of our law that went awry when the Ministers made their decisions to permit mining here. These are that no decision of this magnitude can be made unless a fair, proper and transparent decision making process has been followed.”
Yolan Friedmann, the chief executive of the EWT, said South Africa had long recognised that the grasslands of Mpumalanga, KwaZulu-Natal and Free State were incredibly important to the country's natural heritage.
"The grasslands are important water sources, and home to a range of production sectors that underpin economic development. In the case of Mabola, the Protected Environment falls inside a strategic water source area, which feeds some of South Africa’s biggest rivers."
Mashile Phalane, spokesperson for MEJCON-SA, said: "This judgement is a victory for environmental justice. We want to see protected areas actually protected against mining by our government as custodians of the environment on behalf of all South Africans. This custodianship is violated if decisions that have such important consequences are taken behind closed doors."