Court scut­tles mine in key area for head­wa­ters

Business Day - - NATIONAL - Neels Blom Writer at Large blomn@busi­nesslive.co.za

The high court in Pre­to­ria has set aside per­mis­sion granted to In­dian-owned com­pany AthaAfrica Ven­tures to mine coal in the wa­ter-crit­i­cal Mabola Pro­tected En­vi­ron­ment near Wakker­stroom in Mpumalanga.

Mabola is part of the Enkan­gala Drak­ens­berg Strate­gic Wa­ter Source Area, which con­sti­tutes the head­wa­ters of sev­eral crit­i­cally im­por­tant rivers, in­clud­ing the Vaal. The Vaal River sup­plies wa­ter to SA’s in­dus­trial heart­land, in­clud­ing about 45% of the coun­try’s pop­u­la­tion.

The Mabola area was de­clared pro­tected in 2014 un­der the Pro­tected Ar­eas Act by the pro­vin­cial gov­ern­ment as part of more than 70,000ha of pro­tected area in the Mpumalanga grass­lands. This ac­tion fol­lowed years of re­search and plan­ning by sev­eral gov­ern­ment agen­cies, in­clud­ing the depart­ment of en­vi­ron­men­tal af­fairs, the SA Na­tional Bio­di­ver­sity In­sti­tute and the Mpumalanga Tourism & Parks Agency.

The per­mis­sion given to Atha-Africa Ven­tures was the first in SA for a new mine in a pro­tected en­vi­ron­ment.

The ap­pli­ca­tion for a re­view of the per­mis­sions was brought by a coali­tion of eight civil so­ci­ety or­gan­i­sa­tions.

In set­ting aside the per­mis­sion, judge Nor­man Davis found that late en­vi­ron­men­tal af­fairs min­is­ter Edna Molewa and for­mer min­eral re­sources min­is­ter Mosebenzi Zwane had com­mit­ted “an im­per­mis­si­ble ab­di­ca­tion of de­ci­sion-mak­ing au­thor­ity” when they granted the min­ing per­mis­sion in 2016.

In a scathing judg­ment, he crit­i­cised the min­is­ters for fail­ing in­de­pen­dently to ex­er­cise their dis­cre­tion un­der the Pro­tected Ar­eas Act and for their fail­ure to ap­ply a cau­tion­ary ap­proach when deal­ing with “sen­si­tive, vul­ner­a­ble, highly dy­namic or stressed ecosys­tems”.

Davis said on more than one level the min­is­ters had not ap­pre­ci­ated their dis­tinc­tive du­ties and nei­ther had they ful­filled them in the way they came to their con­clu­sions.

He said there was a “dis­turb­ing fea­ture in the con­duct of the min­is­ters or their de­part­ments which gave rise to one of the com­plaints of a lack of trans­parency, and it is this: the pri­mary ben­e­fi­cia­ries of the min­ing ac­tiv­ity sought to be per­mit­ted are based off­shore and their lo­cal BEE com­po­nent is, to an ex­tent, po­lit­i­cally con­nected”.

The judge awarded puni­tive costs to the ap­pli­cants. AthaAfrica was nei­ther li­able nor en­ti­tled to costs.

The pro­posed un­der­ground mine, to be known as Yz­ermyn, was ex­pected to op­er­ate for 15 years and pro­vide 550 to 600 per­ma­nent jobs.

Atha-Africa se­nior vi­cepres­i­dent Praveer Tri­pathi was not avail­able for com­ment on Thurs­day. A spokesper­son said its le­gal team would dis­cuss the im­pli­ca­tions of the judg­ment.

Cather­ine Hors­field, at­tor­ney at the Cen­tre for En­vi­ron­men­tal Rights, said the judg­ment con­firms to the gov­ern­ment and de­vel­op­ers propos­ing heav­ily pol­lut­ing projects in en­vi­ron­men­tally sen­si­tive ar­eas that ex­cep­tional cir­cum­stances must be shown to ex­ist to jus­tify a pro­posed de­vel­op­ment.

“The judg­ment also con­firms the foun­da­tional prin­ci­ples of our law that went awry when the min­is­ters made their de­ci­sions to per­mit min­ing here. These are that no de­ci­sion of this mag­ni­tude can be made un­less a fair, proper and trans­par­ent de­ci­sion-mak­ing process has been fol­lowed,” said Hors­field.

Mashile Pha­lane, spokesper­son for the Min­ing and En­vi­ron­men­tal Jus­tice Com­mu­nity Net­work of SA, said the judg­ment was a vic­tory for en­vi­ron­men­tal jus­tice. “We want to see pro­tected ar­eas ac­tu­ally pro­tected against min­ing by our gov­ern­ment as cus­to­di­ans of the en­vi­ron­ment on be­half of all South Africans. This cus­to­di­an­ship is vi­o­lated if de­ci­sions that have such im­por­tant con­se­quences are taken be­hind closed doors.”

/Freddy Mavunda

Dere­lic­tion: For­mer cab­i­net mem­bers Mosebenzi Zwane and the late Edna Molewa had ab­di­cated their au­thor­ity when they is­sued a li­cence for Yz­ermyn mine, the high court found.

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