Factory: The area in Mpumalanga where the proposed coal mine is situated has highly sensitive wetlands and pans that are important for producing the country’s water. Photo: Kerstin Geier
A coalition of eight civil society organisations returned to the high court in Pretoria this week for the latest hearing in their long-running legal battle to stop coal mining in an ecologically sensitive area near Wakkerstroom in Mpumalanga.
Endangered Wildlife Trust (EWT) and the Federation for a Sustainable Environment — both members of the Mabola coalition — are challenging the water use licence granted for the proposed underground coal mine, Yzermyn, a project of Uthaka Energy, formerly Atha-Africa Ventures. The Centre for Environmental Rights (CER) is representing the coalition.
Mabola is home to high-altitude grasslands, highly sensitive wetlands and pans that support endemic plants, bird and animal species as well as unique and endangered ecosystems. It falls in the Enkangala-Drakensberg Strategic Water Source Area, one of 22 such water “factories” that produce half the country’s fresh water, despite comprising just 10% of its land area.
Safeguarding these strategic source areas is crucial for the country’s water security and its ability to provide water for people, livelihoods and economic activity, particularly in light of the effects of global warming, the coalition said.
Its members also comprise Mining and Environmental Justice Communities Network of South Africa, groundWork, Earthlife Africa Johannesburg, BirdLife South Africa, the Association for Water and Rural Development and the Bench Marks Foundation.
Until January last year, the proposed mining area fell within the 8 772-hectare Mabola Protected Environment, an area declared under the Protected Areas Act in 2014. But Mpumalanga MEC Vusi Shongwe revoked the protected area status.
Shongwe’s decision is also being challenged by the coalition and is among a raft of approvals it is seeking to overturn. In November, the constitutional court dismissed Uthaka’s leave to appeal a 2021 high court interdict, preventing it from starting to mine.
Appeal
In July 2016, the director general in the department of water and sanitation granted a water use licence for Yzermyn, authorising various uses under the National Water Act to enable it to proceed with coal mining. In May 2019, the Water Tribunal dismissed members of the Mabola coalition’s appeal against the director general’s decision.
“Our clients are appealing against the decision of the Water Tribunal and against the granting of the water use licence in order to protect the water resources of this area in recognition of the fact that long-term water security is a human rights issue,” said Tarisai Mugunyani, an attorney at the CER.
Mariette Liefferink, chief executive of the Federation for a Sustainable Environment, said: “Mabola is a strategic water source area where no mining ought to take place because it impacts on Gauteng’s water — that entire area is extremely important.”
“This appeal, the latest in a long line of legal battles fought by the Mabola coalition, is testament to the importance of the Mabola Protected Environment,” said Yolan Friedmann, chief executive of the Endangered Wildlife Trust. “This area was proclaimed a protected environment in 2014 and has been recognised by almost all sectors of local and national government as critically important both ecologically and in terms of ensuring sensitive and sustainable economic development in the future.”
CER attorney Tatenda Muponde said: “We should be expanding, not risking, protected areas in South Africa, particularly in light of the urgent need to adapt to climate impacts.”
Muponde said the mine’s social and labour plan “noted that coal mining will generate dust, noxious gases and smoke, noise, vibrations, traffic and the contamination of surface and groundwater on downstream water users”.
“These environmental harms will be imposed on local community members, potentially damaging their health, and threatening their long-term means of subsistence livelihoods and employment,” Muponde said. “The water use licence was issued even though the mine did not adequately assess the mine’s impacts on downstream water users.”
Praveer Tripathi, senior vice-president of Uthaka Energy, said it had “no comments on the sweeping lies perpetually disseminated by the anti-development, anti-poor and anti-historically disadvantaged community of Dr Pixley ka Isaka Seme Local Municipality, [the] Centre for Environmental Rights”.
Impacts are ‘manageable’
In its appeal decision, the Water Tribunal stated the department had imposed appropriate conditions to address the adverse impacts of the authorised water uses.
“From an administrative law perspective, the decision that was taken was reasonable, fair and rational based on the documents and reports available.
“The additional information placed before us on the sensitivity of the area, the predicted impacts, whether of dewatering, decant and seepage, lead us to conclude that these impacts are manageable. The totality of the information before us point to the proposed water uses being efficient and beneficial — that would not be the case if we do not authorise the water uses.”
Uthaka, the tribunal found, had proposed mitigation measures that were reasonable and technically adequate to deal with the impacts of dewatering, decant and the management of wastewater from the mine.
“While the environment and ecological sustainability are foundational to the notion of sustainable development, the National Water Act, National Environmental Management Act and the Constitution require us to take an approach which integrates all these aspects without subjective linear focus on any one.
“We find, based on the information available to us and building upon the decision of the first respondent to issue the water use licence, there will be a positive socioeconomic impact on the local community.”
The accepted estimate of 70 jobs during construction and 576 jobs during the operational phase “can make a substantial difference to the livelihoods of a community that has evidently not been enriched by the current water uses and commercial farming in the area”.
‘Undermining public interest lawyering’
The CER said that this week’s court hearing was significant because the mining company had used the appeal as an opportunity to “attack and undermine public interest lawyering”.
It is not only seeking punitive cost orders against members of the Mabola coalition but also against the CER. This has led to seven public interest law organisations joining the matter as friends of the court, including Section27 and the Centre for Applied Legal Studies.
“It is disturbing to witness a private company launch an attack on the long-standing and proud tradition of public interest lawyering in South Africa,” said Bobby Peek, groundWork director.
“But it is encouraging to see how a small group of motivated civil society organisations can work together for the long-term economic interests and water security of future generations, particularly in light of the coming impacts of climate change.”
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