Zuma-linked mine dealt le­gal blow

Mail & Guardian - - News - Sipho Kings

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 twothirds 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 8772 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 AthaAfrica 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 AthaAfrica 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 AthaAfrica’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 worsthit 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.

Civil so­ci­ety is op­pos­ing what has been a rub­ber­stamp­ing process for min­ing rights

Photo: An­thony Schultz

Prospect­ing prospects: With much of Mpumalanga’s land al­ready be­ing used for min­ing, ac­tivists are now fight­ing an ap­pli­ca­tion to mine a tract of pro­tected wet­land near Wakker­stroom. Photo: Lawrette McFarlane/GO!/ Gallo Images

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