The Mabola Protected Environment, near Wakkerstroom in Mpumalanga, forms part of one of South Africa’s water factories, contributing significantly to the country’s overall water supply.
The Mabola Protected Environment, near Wakkerstroom in Mpumalanga, forms part of one of South Africa’s water factories, contributing significantly to the country’s overall water supply.
But if a controversial coal mine goes ahead, it will have a “disproportionately large adverse effect” on the functioning of downstream ecosystems and the overall sustainability of growth and development in the regions that Mabola supports.
These were among the arguments put forward in the Mbombela high court last week by a coalition of environmental justice organisations in their nine-year legal battle to halt coal mining in the protected and strategic water source area.
The coalition’s judicial review application sought to set aside the 2021 decision by the province’s former MEC for agriculture, rural development, land and environmental affairs, Vusi Shongwe, to revoke the protected area status of a large part of the Mabola Protected Environment to enable Uthaka Energy’s Yzermyn coal mine to go ahead.
Shongwe’s decision should be overturned because it was “unlawful, biased and erodes protection” for an area that is ecologically sensitive and economically important as a strategic water source area for South Africa as a whole, the coalition said in its heads of argument.
The strategic importance of Mabola as a protected environment has intensified since its declaration because of the country’s water scarcity and the imperative to facilitate its resilience to climate change, the organisations argued.
“We submit that the purpose of the declaration of the Mabola Protected Environment was, and still is, sound and reasonable in science, policy and law,” they said.
The coalition comprises the Mining and Environmental Justice Communities 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.
Circumvention
The case centres on the National Environmental Management: Protected Areas Act, which prescribes that mining may take place within a protected environment — provided there is permission from the minister.
Shongwe’s decision followed the coalition’s successful challenge of the permission previously given for the underground coal mine by the former ministers of environmental affairs and minerals, Edna Molewa and Mosebenzi Zwane.
In 2018, it led to the high court setting aside those permissions as unlawful and awarding punitive costs against the MEC and the ministers. Four attempts by the mining company — formerly Atha-Africa — to challenge the high court decision failed, ultimately with the constitutional court, leaving the coalition’s judgment intact.
According to the applicants, Shongwe’s decision under the Act to exclude the properties to enable mining “was therefore a circumvention of a court judgement and of the Act, which requires ministerial consent in a protected environment”.
They said the MEC’s decision to exclude the properties undermined South Africa’s existing protected area network as well as dedicated efforts to expand the country’s protected area network.
The exclusion of the properties sets a “dangerous precedent” for the withdrawal of protection for protected areas in the interest of “unjustifiable commercial ventures”, they added.
Significant biodiversity
The declaration of the Mabola Protected Environment was because of the initiative of the Mpumalanga biodiversity sector plan, overseen by the Mpumalanga Tourism and Parks Agency over about 14 years. Protected environments are declared to control the cumulative effects on natural features, biodiversity and the production of environmental goods and services, the applicants noted.
“Mpumalanga is well known for its globally important biodiversity. Its ecosystems are characterised by high levels of both plant and animal diversity and a significant number of unique species that are not known to occur anywhere else.”
The province occupies only 6% of the country’s land surface but holds 21% of its plant species with nearly a quarter of its vegetation types nationally gazetted as threatened. Its grasslands form part of the most biodiverse biome in South Africa and contain many unique, rare and threatened species and ecosystems.
The Mabola Protected Environment is in a high water-yield area on the watershed between the Usutu and the Pongola catchments and rises from the foothills of the Assegai River in the mountains above Wakkerstroom.
The Assegaai River, in turn, flows into the Heyshope Dam, from which water is diverted into the Vaal River System via inter-basin transfer. Downstream of the Heyshope Dam, the Assegaai River flows into the Usutu River which flows through eSwatini and, after joining the Pongola River, flows into Mozambique, where it is known as the Maputo River, the applicants said.
‘Frustrating mining’
In its arguments, Uthaka Energy said it had been attempting to establish and start the mining process at Yzermyn for almost 10 years. It had been “frustrated every step of the way” by the applicants’ constant and ongoing legal challenges, on multiple fronts and in multiple courts.
“The current application by the applicants, to review the decision of MEC Shongwe, to allow mining on four portions of land from the Mabola Protected Environment must be seen within this context, namely, that it is a strategy of litigation aimed at preventing mining at all costs, as what is generally referred to as the Green Lobby’s agenda, to do away with coal mining in totality.”
It said it was “abundantly clear” from previous litigation that the 9 000 inhabitants of the local municipality were in “strong support” of the mine and “vigorously opposed to the Green Lobby’s interference therein”, which had in effect deprived them of jobs and socio-economic opportunities.
“The MEC was mindful of this, and is obliged to be mindful of this, when making decisions, while the Green Lobby has a different agenda, namely an environmental special lobby group, and is unconcerned with the social welfare of the people in the area concerned,” the company added.
Shongwe’s decision was sound as he had a panel of experts advise him and the “decision is well within his prerogative” under section 29 of the Act, it noted.
Underground mining of the nature contemplated in the proposed mine had substantially less effect on the environment and/or biodiversity in the area and “will have little, if any, effect” on the above-ground water sources and grasslands. The mine is going to be hundreds of metres below the surface, it said.
It had spent R800 million to date on this project, with no return, it said, noting that the exclusion of the four farms from the Mabola Protected Environment constitutes a tiny portion of the total protected environment “and will have no impact on any national strategy”.
“Dewatering and acid mine drainage were fully dealt with in the Water Tribunal decision, and are dealt with through mitigation measures, in the event that they occur,” said Uthaka Energy. “There are restrictions attached to the water use licence to mitigate any effect to the environment.”
Meanwhile, according to the applicants, on the socio-economic benefits of the mine and the jobs created for local people, “Uthaka presented no answer to the applicants’ submissions that the jobs for the mine will not be sourced locally.”
Judgment was reserved.