Neels Blom Writer at large
A young boy fetches coal from a defunct mine in Ermelo, Mpumalanga, in an operation run by illegal miners. Picture: GALLO IMAGES
A young boy fetches coal from a defunct mine in Ermelo, Mpumalanga, in an operation run by illegal miners. Picture: GALLO IMAGES

The High Court in Pretoria has set aside the government’s permission granted to Indian-owned company Atha-Africa 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 environmental affairs department, 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 the coalition of eight civil society organisations.

In setting aside the permission, Judge Norman Davis found that the 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 that, on more than one level, the ministers had not appreciated their distinctive duties and neither had they fulfilled them in the manner in which 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”.

Davis awarded punitive costs to the applicants.  Atha-Africa 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 vice-president Praveer Tripathi was not available for comment on Thursday. A company spokesperson said its legal team would discuss the implications of the judgment.

Catherine Horsfield, attorney at the Centre for Environmental Rights, said the judgment confirmed 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.”