Business Day

Court scuttles mine in key area for headwaters

- 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.
/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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