Johannesburg - With two brusque sentences, the Constitutional Court has ruled against a proposed coal mining project in a protected area and Strategic Water Source Area (SWSA) in Mpumalanga.
After three failed attempts, Indian mining company Atha-Africa Ventures approached the Concourt to challenge last year’s high court decision setting aside ministerial approvals for its controversial planned Yzermyn underground coal mine near Wakkerstroom in the highly sensitive Mabola district.
But the apex court was not moved.
“The Constitutional Court 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 prospects of success,” it stated briefly in its ruling on November 6.
The planned mine will run beneath the 8772 hectare Mabola Protected Environment (MPE), declared under the Protected Areas Act in 2014 as part of the declaration of more than 70000ha of protected area in the Mpumalanga grasslands.
The MPE is located within the Ekangala-Drakensberg, classified as one of the country’s 22 SWSAs as it gives rise to the Vaal, Pongola and Tugela rivers.
“We believe this ruling sends a strong message with regards to the importance of protecting our SWSA and our network of protected areas from large-scale development, such as mining,” said Mark Anderson, the chief executive of BirdLife South Africa.
“While we recognise the urgent need for activities that create jobs and boost our economy, these should not compromise the ability of our environment to provide us with the ecosystem services on which we rely, nor should they compromise the ability of species to persist in the long term.”
BirdLife South Africa is part of a coalition defending the MPE, represented by the Centre for Environmental Rights (CER), which also includes the Mining and Environmental Justice Communities Network of South Africa (Mejcon-SA), groundWork, Earthlife Africa Johannesburg, the Endangered Wildlife Trust, the Federation for a Sustainable Environment (FSE), the Association for Water and Rural Development (Award) and the Bench Marks Foundation.
The Enkangala-Drakensberg SWSA supports Gauteng as well as various towns and agricultural regions in Mpumalanga, KwaZulu-Natal and the Free State. Coal mining is its most significant threat as only 1% of the water source area is formally protected whereas 45% coincides with coal fields, according to the CER.
Mariette Liefferink, the chief executive of the FSE, said that the Department of Water and Sanitation’s draft Water and Sanitation Master Plan (the final plan is due to be released next week), recognises the importance of SWSAs as the water factories of the country, but most have little formal protection.
Furthermore, 57% of river eco- system types and 65% of wetland ecosystem types are threatened, making wetlands the most threatened of all ecosystems. “In view of the threats, the FSE salutes the latest decision by the Constitutional Court.”
Sharon Pollard, the director of Award, too welcomed the ruling. “Reading into the Constitutional Court’s decision, the message is spelled out really clearly that this was a misuse of the court’s time - and for them (Atha) to elevate it to that level, was quite disingenuous.”
In November last year, the North Gauteng High Court in Pretoria set aside the 2016 decisions of the then ministers of Mineral Resources and Environmental Affairs, Mosebenzi Zwane and Edna Molewa, to allow Yzermyn to be developed.
In January this year, the Pretoria court refused Atha permission to appeal last year’s November judgment.
The Supreme Court of Appeal (SCA) found similarly in April - that there was no prospect of successfully overturning the high court judgment.
In July, the president of the SCA dismissed Atha’s application to reconsider the SCA’s April refusal. The judgment remains intact.
Atha-Africa, which maintains its mining project will bring development to an impoverished area, said it did not have any comment at this stage. It has stated its mitigation measures will ensure "contamination will be managed within legal limits".
The CER says the ecological sensitivity, hydrological importance and planned legal protection for the area were known by Atha-Africa before its acquisition.
To proceed further, it will now require a fresh approval under the Protected Areas Act from the new Minister of Environment, Forestry and Fisheries, Barbara Creecy, and the new Minister of Mineral Resources and Energy, Gwede Mantashe.
“However, they may not consider giving permission until the director-general at the Department of Mineral Resources has decided the coalition’s appeal of Atha’s environmental management programme for the proposed coal mine, which the DMR approved in 2016,” says the CER.
The coalition's legal challenges have revealed records of how officials in various government departments recommended approvals be refused “but these were overruled by their superiors”.
The Mpumalanga government, too, is trying to facilitate the development of Yzermyn, says the coalition. In January, Mpumalanga MEC Vusi Shongwe withdrew his notice of intention to exclude properties proposed for mining from the MPE. But “inexplicably” in August Shongwe again published notice of his intention to exclude the proposed mining area from the MPE, which is being opposed by the coalition.
Shongwe said his decision was based on ensuring “balance towards the use of natural resources for socio- economic benefits” for the community of Pixley Ka Seme local municipality and South Africa, while promoting environmental protection and sustainability.
It would promote economic growth and co-existence of mining activities and conservation within the area on the affected properties.
“You keep thinking it’s over but there may be other interests in Mpumalanga that continue to drive the Mabola case,” said a conservationist, who did not want to be named.