Oubaas Malan may be close to 70 but the Mpumalanga farmer still has a lot of fight left in him. That's clear when he speaks about his adversarial relationship with Indian mining company, Atha-Africa Ventures.
"I'm like a Jack Russell terrier fighting a boerbul," he says. "I won't let go."
For several years, Malan, the chairperson of the Mabola Protected Environment Landowners Association (MPELA), has opposed the company's proposed Yzermyn underground coal mine near Wakkerstroom in the sensitive Mabola district.
The planned underground coal mine will run beneath the 8 772ha Mabola Protected Environment, declared by Mpumalanga authorities in 2014. It is located within the Ekangala-Drakensberg, classified as one of the country’s 21 strategic water source areas as it gives rise to the Vaal, Pongola and Tugela rivers.
An eight-member coalition of community and civil society groups, represented by the non-profit Centre for Environmental Rights (CER), recently launched a judicial review application to set aside the decision of the Mpumalanga Department of Environmental Affairs to grant environmental authorisation to Atha and the decision of the MEC to dismiss the coalition's appeal in the Mbombela High Court.
Their application is coupled with an interdict preventing the start of any activities at the proposed site, pending the outcome of the review.
It's the latest in a raft of legal challenges - including against the Ministers of Environmental Affairs and Mineral Resources for their approval of Atha's mine - that the coalition is pursuing to protect Mabola from coal mining.
A Protected Environment is a legislative mechanism, enabling landowners to take collection action to safeguard an area's biodiversity and natural characteristics.
The coalition includes the Mining and Environmental Justice Community Network of South Africa, groundWork, Earthlife Africa Johannesburg, BirdLife South Africa, the Endangered Wildlife Trust, the Federation for a Sustainable Environment, the Association for Water and Rural Development and the Bench Marks Foundation,
Atha's mining right area covers 8 360ha over 12 farms and its project it says, aims to deliver quality grade coal for domestic markets, Eskom and export markets.
Last November, the MEC dismissed the coalition's appeal, noting that Atha's environmental impacts could be mitigated; the mine was in line with the country's invitation to Indian companies to invest in the mining sector, and impoverished local communities would benefit through employment, infrastructure development and the alleviation of poverty.
But in their founding affidavit, the coalition states they have have a well-grounded apprehension of irreparable harm. "The potential for serious environmental harm to flow from the commencement of the mining is clear. The ecosystems in the proposed mine area have been recognised as strategically important and environmentally sensitive.
"Some of the most important rivers supplying water to the most populated areas of SA (and to Swaziland and Mozambique) stand to be seriously impacted by any contamination of fresh water flowing from the area."
Atha-Africa, however, however, strongly disputes this. (See the company's response below). "Part of the proposed mine is classified as a strategic water source area (based on run-off water) of which only 22.4 ha could potentially be affected," it says.
"The statement about this mine disrupting the water supply to have a national economic impact is blatantly false and untrue. Based on the calculation of the impact on water supply, it will not even have a significant impact locally much less nationally."
South Africa's threatened collection of strategic water source areas are its crown jewels, remarks Catherine Horsfield, an attorney at the CER. "What is exceptional about this case is the environmental, and specifically water, significance of the area where Atha is proposing to mine for coal and where, thus far, our government has given them licences to do so.
"The proposed mine is in an area protected under the Protected Areas Act as the Mabola Protected Environment. It's a national freshwater ecosystem priority area and it is a critical biodiversity area. Most importantly, it is also a strategic water source area for the country."
South Africa is a water-scarce country with uneven distribution of rainfall, she says. "Our mean annual rainfall is 490mm. This is only half the global average. Most of our water comes from precious areas (in the highest parts of our catchments) that receive the highest rainfall. These are South Africa’s strategic water source areas - the 'crown jewels' and headwaters from which our water originates.
"Our strategic water source areas produce disproportionately greater volumes of water in relation to their size. Only 8% of our land provides us with 50% of our surface run-off (water in wetlands, streams and rivers)."
SA's water supply is dependent on the health of this ecological infrastructure. "These must be protected from polluting industries of which coal mining is one of the most severe. Economic development in our country is crucial. But economic development is not possible without water. "
Dr Ian Little, the senior manager of habitats at the Endangered Wildlife Trust, has told the Saturday Star that if SA wishes to retain functioning ecosystems "that continue to provide the vital and constitutionally reserved resources for future generations, then we need to avoid destructive developments that lead to only marginal short term gain to local communities, short term financial gain to developers but long-term and irreversible damage to our natural resources".
LOSKOP MINE IN MABOLA
Malan, whose family has farmed livestock in the Mabola region since the 1950s, supports the work of the coalition. His association, however, has not challenged any licenses awarded to Atha for this proposed mine.
"We told them (Atha) from the first day when they started drilling that we don't want them here, but they don't listen ... We'll fight them till the end."
But Praveer Tripathi, the firm's senior vice-president, has accused Malan of being a hypocrite "who runs an open cast coal mine", Loskop, "within the heart of the Mabola Protected Environment.
"As chairman of MPELA opposing one while running his is akin to pot calling kettle black," he states.
Malan's opposition to Atha's proposed mine, insists Tripathi, is because Malan is "actually saving his own mine".
Tripathi has now released a document dated February 27 this year on behalf of the trustees of Malan's Oudezicht Trust, as the potential title holders of all rights and obligations in response of the mining rights registered in favour of XDSL 504 Trading, which is in business rescue, with a potential buyer for the mining right for Loskop.
"Our client hereby provides its intent to enter into an access agreement with yourselves or your nominees as potential acquirers of the mining right registered in favour of the entity in business rescue, subject to and conditional upon the following salient terms," it reads, in part.
"The compensation payable in respect of the access to be granted payable towards our client to be an amount of R80 000 plus VAT payable monthly in advance plus a turnover rent of R4 (plus VAT) per ton coal mined payable in advance plus a turnover rent of R400 (plus VAT thereon) per ton coal mined, such payments to be made monthly in areas in respect of all coal mined."
Sufficient provision, it says, must be made by the successful acquirer of the mining right for rehabilitation of the mining site, "to be agreed to by our client and the business rescue practitioner. "Sufficient security to be provided by the mining right holder as to any current rehabilitation of the mining right to be effected."
Malan counters that Loskop is an old mine that was started in the 1980s, long before Mabola was proclaimed a protected environment.
His payments from XDSL 504 had "stopped long ago. How am I benefiting from this mine (Loskop)? I have suffered huge losses. I actually have a claim against them for loss of income because my cows are not getting pregnant because there is too much sulphur.
"It's because of the mess at the Loskop quarry and everywhere else that there are coal mines - go to Witbank or Middelburg - that I'm objecting to this mine of Atha's."
He confirms the business rescue practitioner is searching for buyers for the mining right with the prospect of the buyer mining out the remaining coal on condition the buyer takes over the existing environmental liability and undertakes the rehabilitation of the mine.
A 2016 groundWork report, Destruction of the Highveld Part 1: Digging Coal details how the Mabola Protected Environment is "littered" with applications for prospecting rights but there are as yet few mines.
"One of them is the Loskop mine located within Mabola on a farm belonging to ‘Oubaas’ Malan. He says his father held the mining right but sold it in the 1980s.
"The mine was opened and worked for a few years but soon closed down. The mining right, however, was sold on and came into the possession of XDSL, a company established in 2005.
"In 'about 2012', Malan found XDSL at his gate and did a deal on the rent for the company’s use of surface land and farm roads. He has not been paid. Similarly, he says, people in the nearby village of Dirkiesdorp were promised jobs. They have not been employed," states the report by the environmental justice NGO.
The Loskop mine is a "mess", says the groundWork report. "Mining spoil has been dumped across several hectares of land and in one area is piled against a ravine forest. Coal fines and dust cover large areas, some areas are eroded down to rock with runoff beginning to cause erosion off site, and land disturbed by the original mine is infested with wattle.
"The exposed coal seam is rich in sulphur and pyrites. This area is on a small watershed which is the source of two streams.
"One stream runs east to join the Mabola River and the other runs west to the Mawandlane. Downstream, they all come together in the Assegai.
"Coal debris and dust washed from the mine are visible on the riverbeds of both streams. Malan tells us that local people complain that they can no longer use the water for drinking or cooking," states groundWork.
The CER's Horsfield adds that operations at Loskop have stopped and restarted several times since the right was first operated on in the 1980s "initially because the operator went insolvent, subsequently due to health and safety concerns and a DMR shutdown, and currently due to the right holder being placed in business rescue.
"Malan has reported the unrehabilitated mine to a range of government departments including mineral resources, environmental affairs, agriculture, rural development and land administration and water affairs. Only the Department of Water and Sanitation responded and conducted an inspection but this came to nothing."
She points out too, how under the law, an owner of land is not entitled to refuse mining on his/her land. "If the DMR grants a mining right, the landowner’s only recourse is to negotiate with the mining right holder for compensation for the loss that landowner will suffer as a result of the mining on his/her land (Section 54(3) of the Minerals and Petroleum Resources Development Act.
“If the regional manager, after having considered the issues raised by the holder under subsection (1) and any written representations by the owner or the lawful occupier of the land, concludes that the owner or occupier has suffered or is likely to suffer loss or damage as a result of the reconnaissance, prospecting or mining operations, he or she must request the parties concerned to endeavour to reach an agreement for the payment of compensation for such loss or damage.”
Loskop, she says, existed before any attempts to protect the area, the declaration process or provincial protected area expansion plan. The property where it is situated was erroneously included in the Mabola Protected Environment declaration, she explains.
"The existence of the Loskop mine does not set a precedent for the proposed Yzermyn mine to go ahead. Quite the opposite. The Loskop mine was started long before we had current knowledge of the sensitivity of the area, and before the legal tools existed to protect the area. The Loskop mine is causing unacceptable pollution and environmental degradation from its operators over time not conducting concurrent rehabilitation as they mined.
"The Loskop mine is in a state of abandonment. The existence of the Loskop mine is part of the reason for the Mabola Protected Environment declaration: to prevent further degradation of the natural areas in the Mabola Protected Environment and maintain and conserve the biodiversity there."
The firm has accused the coalition and the CER of seeking to misrepresent, "sensationalise" and "spread negative sentiments" against the mine's development among the public.
In its response to the judicial review application, it says, the Mpumalanga Department of Environmental Affairs and the MEC granted environmental authorisation to Atha "considering long-standing recognition of the strategic environmental importance of the area.
"The strategic importance of the area was investigated for the 22.4 ha that is proposed to be disturbed. The mitigation of specifically the water source, and biodiversity issues, were proposed taking into consideration the comments of various stakeholders, government departments and agencies. The mitigation will ensure that the contamination will be managed within legal limits."
After following due process, the company was "legally granted a mining right in 2015. The declaration of the Mabola Protected Environment in 2014 was done in contravention of Atha's right."
The mine's development is supported by many key planning instruments such as the Social Development Framework and Integrated Development Plan, it says.
Atha-Africa, too, maintains that it has large community support for its mining project. The community is its partner in bringing development to one the most impoverished and economically depressed regions of Mpumalanga.
"Atha once again reiterates its commitments to bring sustainable development to the region. Development of the company and the mine will translate into development of the community. The company has committed R6 million to social and labour initiatives and are already rolling out a number of initiatives with focus on health, education and agriculture."
These initiatives have included donating shoes to impoverished local children at several primary schools in Mabola as well as delivering 2000 sanitary pads to impoverished learners in the region's high schools.
Atha's media statement quotes Thabiso Nene, its community consultant, stating that the community of Dr Pixley Ka Isaka Seme fully supports Atha's planned mine and the coalition's court cases against this development are "frivolous".
"The appeal against the granting of the environmental authorisation by the CER coalition was referred to an independent 'appeal panel', which heard all sides in a three day sitting in August 2017. This appeal panel made an informed recommendation to the MEC:MDARDLEA and the MEC acted based on the recommendation of this independent appeal panel to dismiss CER’s appeal."
In a Facebook post in response to an earlier version of this article, Nene writes how local communities are not benefiting from the Loskop mine but are being exploited by "this Oubaas and the CER. He should watch our community lays Jack Russell terrier to permanent sleep. We r masters in resting dogs with rabies. Obaas can take dat to de bank. The community of Dr Pixley ka Seme local municipality and that of Mabola will fight with this evil civil organisation till the bitter end."
The CER says Atha's own reports show most of the jobs for the planned mine won't be sourced locally. Atha says 417 out of 576 jobs will be sourced locally. "That is more than 70%, "which certainly means most jobs will be sourced locally ... The continuation of agriculture will not provide the level of growth to the area that mining may offer, such as increased employment of residents in the area, greater economic input allowing development of the towns and surrounding areas, and greater socio-economic stability in the area.”
It disputes that local communities will be negatively impacted as their access to water will be restricted since the mine will cause the groundwater levels to drop and springs to dry up. "Local communities will not experience their access to water being restricted, as the impacts are limited to the physical mining property, where the local communities do not reside.
"The assertion of the CER that water would become contaminated is completely devoid of ground truth facts and observation."
Its mitigation measures, it says, will ensure that "contamination will be managed within legal limits".
The CER says the proposed mine would be located in a water source of the Vaal River System, which supports the water needs of South Africa’s economic hub, Gauteng. The proposed mining are also falls within the headwaters of the Usutu River which flows through Swaziland and, after joining the Pongola River, flows into Mozambique. Consequently, the health of this river systemis also relevant to South Africa’s international obligations. All of these users will be affected should a source of those rivers be compromised.
Atha responds: "The proposed mine would be located in a water source of the Usuthu River from where it is pumped to the Vaal River System through a Water Transfer Scheme, from the Heyshope dam to support the water needs of South Africa’s Eskom power plants.
"The proposed mining area also falls within the headwaters of the Usutu River which flows through Swaziland and after joining the Pongola River, flows into Mozambique. Atha-Africa is aware of and have reported on South Africa’s international obligations. The assessment shows that the impact on the Usuthu River will not be compromised and mitigation measures to address the same have been found to be adequate," says the firm.