/ 30 June 2017

Zuma-linked mine dealt legal blow

Prospecting prospects: With much of Mpumalanga’s land already being used for mining
Prospecting prospects: With much of Mpumalanga’s land already being used for mining

The high court in Pretoria has ordered that mining company Atha-Africa give environmental civil society groups three weeks’ written notice before it starts mining in a protected area, which will give them crucial time to fight the permits the mine will need before it starts operations.

The Mabola Protected Environment – where Atha-Africa wants to mine – is particularly symbolic in the struggle between mining and water in Mpumalanga. About two-thirds of that province is under a prospecting or mining licence.

Mabola, with its rivers, wetlands and giant waterfalls, is the source of the Vaal, Pongola and Tugela rivers. These supply water to Gauteng, Mozambique, KwaZulu-Natal and much of South Africa’s Highveld.

The court order came after a coalition of eight groups approached the court with an urgent interdict application, challenging the decision by Mineral Resources Minister Mosebenzi Zwane to give Atha-Africa a mining right in the Mabola Protected Environment. Mabola is about 50km northeast of Wakkerstroom and covers 8 772 hectares.

By declaring the area a protected environment, the government was ensuring that mining could only happen when both the environment and mining ministers gave their permission. This seemed improbable.

But then came Atha-Africa and its black economic empowerment (BEE) partner, the Bashubile Trust. Two of its trustees are Sizwe Christopher Zuma and Vincent Gezinhliziyo Zuma. Besides their surnames, various things link them to the president. One is the fact that Sizwe Zuma has cited the Bryntirion Estate (the presidential compound in Tshwane) as his residential address. Most reports list the two as the president’s nephews.

In arguing against Atha-Africa and its BEE partner being given a mining right, the civil society coalition said the proposed 15-year coal mine would cause “unacceptable pollution and degradation of the environment”. But their main point to the court was that a “poor decision-making process” had led to the granting of the right.

To back this up, the coalition filed documents that showed how junior officials in the minerals department had said the mining right should not be granted, but were overruled by senior officials. The water and sanitation department also gave the mine a water use licence, after initially opposing the application by Atha-Africa to get a mining right.

In justifying her granting of environmental rights, Environmental Affairs Minister Edna Molewa said: “The Mabola region is both a critical water catchment area and a biodiversity priority area. Thus, mining and its associated activities in this area are also strictly regulated in terms of our mining and biodiversity guideline.”

The environment, water and mineral resources departments were all listed as respondents in the high court application. But none of them opposed it, leaving it up to Atha-Africa to defend.

Initially, Atha-Africa opposed the application, even demanding a punitive cost order against the civil society coalition and their attorneys from the Centre for Environmental Rights. But eventually the parties reached an agreement, which was then made a court order. The mining company said the agreement was to find a “practical solution”.

In effect, this gives the civil society coalition more time to fight the different applications that Atha-Africa has had to submit to mine in the Mabola Protected Environment.

The coalition is appealing the Mpumalanga government’s decision to grant environmental authorisation for the mine. Atha-Africa has opposed this appeal and a hearing is being scheduled on the matter. Until then, the authorisation is suspended.

Another appeal is being prepared against the mine’s application to change the land use classification for where it wants to mine – from agricultural to mining.

In April, the Pixley ka Seme district municipality told the company to apply again for the land use change because its application was legally flawed. Atha-Africa did this in June but the municipality has not sent that information on to interested and affected parties.

The civil society coalition is also appealing the approval given by the minerals department for Atha-Africa’s environmental management programme and the granting of a water use licence to the mine.

All of this represents a sustained move by civil society to oppose what has hitherto been a rubber-stamping process for mining rights applications throughout South Africa.

Mpumalanga has been the worst-hit province, but the courts have started changing this. In March, the Supreme Court of Appeal ruled against the granting of a prospecting right for Barberton Mines in the Barberton Nature Reserve.

Other cases have gone against the government, with its decisions to grant licences overturned because it had not followed due process.

In the case of Mabola, the different branches of the fight against the mining right being granted in a protected area rely on the argument that due process has not been followed.

If they are successful in any one of these actions, the eight civil society groups will be able to stop mining in one of South Africa’s most important sources of clean water.