Court drama over Mabola
Coal mine sign-off in the spotlight
WHEN the ministers of environmental affairs and mineral resources quietly signed off on a controversial coal mine in the Mabola Protected Environment (MPE) in 2016, they did “everything in their power to hide what they were doing”.
This is the contention of a coalition of eight civil society organisations in their application for a judicial review of the controversial decision by the late minister of environmental affairs Edna Molewa and former minister of mineral resources Mosebenzi Zwane to permit Atha-africa Ventures to mine for coal in the MPE, near Wakkerstroom, in terms of the National Environmental Management: Protected Areas Act (NEMPAA).
“How then did the two ministers and their departments respond to the constitutional and statutory obligations to act openly and transparently? They did everything in their power to hide what they were doing, to throw the applicants off their tracks and to lead them on a merry dance.
“They left most letters from the applicants unanswered, and where they did respond, when forced by Promotion of Access to Information Act requests, they acted evasively and in a manner that, we submit, was dishonest.”
Yzermyn, the planned underground coal mine of the Indian-owned mining firm, linked to former president Jacob Zuma, will run beneath the 8 772ha Mabola Protected Environment, declared by Mpumalanga authorities in 2014.
It is located within the Ekangala-drakensberg, which is classified as one of the country’s 21 strategic water source areas as it gives rise to the Vaal, Pongola and Tugela rivers. The MPE is a national freshwater ecosystem priority area and a critical biodiversity area.
“It is clear that the area in which the coal mine would be situated is unlike other areas in which coal mines might be situated. It falls within an area which has been recognised by all three spheres of government and various statutory and other conservation bodies as requiring protection,” states the coalition, which is represented by the Centre for Environmental Rights (CER) in its legal papers.
The coalition consists of the Mining and Environmental Justice Community Network of South Africa, Earthlife Africa Johannesburg, Birdlife South Africa, the Endangered Wildlife Trust, the Federation for a Sustainable Environment, groundwork, the Association for Water and Rural Development and the Bench Marks Foundation.
The case centres on permission to mine within a protected environment under section 48 of NEMPAA. It forbids mining in a protected environment, even if other statutory authorisations are in place. But it creates an exception, argues the coalition, namely, if the Ministers responsible for the environment and mining respectively, grant written permission for commercial mining in a protected environment.
On Friday, a day before the hearing of the judicial review application was to get under way, the MEC for Environment in Mpumalanga, Vusi Shongwe, took the coalition and state attorneys by surprise when he published a notice of intention to exclude the four protected properties that make up the proposed coal mining area from the MPE, which was declared in 2014.
The notice provides for a comment period of 60 days. This move, CER attorney Catherine Horsfield would argue this week, was deliberately timed.
“At 10.08am on October 15, counsel for the state respondents drew the attention of the counsel for the applications to the notice and explained they had not been informed of this development… At 1.32pm on October 15, I was called by Mr Mathebula of the State Attorney, who said that following the publication of the notice of intention on Friday, the state respondents wanted to postpone the application,” she wrote in an answering affidavit.
“He explained that the reason was that in 60 days’ time, Atha would no longer require permission to mine in terms of NEMPAA because the protected properties would no longer be protected… Mr Mathebula said the MEC had been approached some time in March 2018 by members of the community with a request that he exclude the protected properties from the MPE,”
It appeared that the notice was signed by the MEC on September 27, pertaining only to the protected properties, Horsfield stated in her answering affidavit. “In other words, only the farms which would fall within the underground mining area (and directly adjacent to it) would, if the MEC were to proceed as he intends to do, be excluded from the MPE. The remaining properties comprising the MPE would remain protected.”
The declaration of the MPE had been the rational extension of a series of policy decisions, she said. “By way of contrast, the (Shongwe’s) notice of intention is self-evidently designed to undermine court proceedings and to facilitate a particular project, being the coal mine proposed by Atha.”
This week, Judge Norman Davis of the Pretoria Hgh Court instructed Shongwe to file his own version of events by affidavit.
Shongwe explained how his actions were motivated by a memorandum from the Voice Community Representative Council in Volksrust, and a subsequent petition signed by about 8 500 community members from the Dr Pixley Ka Isaka Seme Municipality. Its secretary, Thabiso Nene, is a community consultant for Atha. “The community has serious concerns about the impact of declaring the area in question as part of the MPE, including that the procedure followed by my predecessor in declaring the area a protected area was flawed,” wrote Shongwe. “There was insufficient consultation with the affected communities… The four farms in question had a history of coal mining... There was a desperate (need to) create employment in the area.”
After hearing arguments, Judge Davis refused the postponement application, and ordered the state to pay the costs of the postponement application.
The coalition, which has challenged each regulatory approval for the proposed Yzermyn, argued that the Ministers failed to take their decisions in an open and transparent manner; ignored the Protected Areas Act’s requirement that mining only be allowed in a protected environment in exceptional circumstances; failed to apply the precautionary principle and failed to take into account that Atha had “failed to make adequate provision for rehabilitation”, among others.
The coalition described how they had heard of the ministers’ decision by chance on January 31 2017 when the CER had requested that the Department of Water and Sanitation (DWS) provide documentation about the granting of Atha-africa’s water right. Attached in the DWS’ response was a copy of a letter documenting the Ministers written approval for the mine in 2016.
“This was the first time that either the applicants or CER learnt of the NEMPAA decisions. It thus emerged that the applicants and the public had deliberately been kept in the dark for several months by both Atha and the two ministers and their departments ... This is denied by the ministers, but the denial is a completely bare one.”
In their heads of argument, the state attorneys argued that when the Ministers made their decision, Yzermyn had received other required authorisations from relevant organs of state. “A critical feature of the decision ... was the appreciation by the Ministers that there are other inter-related statutory authorisation processes. All of these processes considered the unique features of the MPE.
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