Earlier in the month of November 2019, the Constitutional Court refused a mining company’s final challenge of a 2018 High Court decision to set aside Ministerial approvals for a proposed coal mine in South Africa. The Constitutional Court had the final say on the approvals for a coal mine inside an Mpumalanga Protected Area and Strategic Water Source Area (SWSA).
Atha-Africa Ventures (Pty) Ltd (Atha) wanted the Constitutional Court to grant it leave to appeal against a Supreme Court of Appeals decision not to hear its challenge to a lower court judgment that blocked the mining proposal. Atha was granted a mining right for coal after this area had been identified as a Strategic Water Source Area (SWSA) and after the Mabola Protected Environment was declared. Shockingly, after the mining right was authorised, various government departments responsible for the environment and water resources issued the other authorisations Atha needed for its proposed mine.
This judgment related to a decision taken in 2016 by then Environmental Affairs minister the late Edna Molewa and then Mineral Resources minister Mosebenzi Zwane to quietly grant Atha authorisation to develop its proposed 15 year Yzermyn underground coal mine within the Mabola Protected Environment in Mpumalanga.
The Mabola Protected Environment near Wakkerstroom is part of more than 70,000 hectares of grasslands in Mpumalanga that was declared protected under the Protected Areas Act by the Mpumalanga provincial government in 2014. This 8,772-hectare protected area was formally proclaimed in January 2014 under the National Environmental Management Protected Areas Act because of its ecological sensitivity as a high-yielding, highly strategic water catchment area within a high-altitude, threatened grassland ecosystem.
In January 2019, the Pretoria High Court refused Atha permission to appeal the November 2018 judgement. The Supreme Court of Appeal (SCA) found similarly in April 2019 that there was no prospect of successfully overturning the High Court judgment. In July 2019, the President of the SCA dismissed Atha’s application to reconsider the SCA’s April 2019 refusal. Now the Constitutional Court has held similarly.
Activity Rating: ***Right Direction
The Constitutional Court recognised the significance of the environmental protection of our strategic water resources, particularly at a time when we are already experiencing the impacts of climate change. Decisions to grant coal mines should be critically examined and questioned. This is a substantial achievement.
At a time when coal mining is being phased out globally for its detrimental environmental and climate impacts, it is high time that South Africa’s focus be on sustainable resource management and not short term wealth at the cost of livelihoods and a healthy future.
Dear Chief Justice Mogoeng Mogoeng,
Climate Scorecard applauds this decision taken by the Constitutional Court, in a time when upholding the rule of law has never been more important. South Africa has a strong environmental legislation framework which is often not implemented by government departments and it is cheerful to see that our courts are prepared to stand firm in their application of the law to protect the environment from irreversible mining impacts.
Defending the Mabola Protected Environment is more than an attempt to mitigate further climate change impacts. It is also about defending the rights of communities who will be impacted by the proposed mining activities. We applaud this decision as it sends a strong message to decision-makers that mining and profits cannot come before communities and their sustainable livelihoods.
Director of the Constitutional Court
Private Bag X 1
Tel: +27 11 359-7459
This Post was submitted by Climate Scorecard Country Manager Tabana Maiula