Standing as the latest development in a 7-year litigation battle, the Mabola Coalition is back in court, this time to challenge the water use licence granted for a proposed coal mine within the Mabola protected area, situated near Wakkerstoom in Mpumalanga Province.
The Mabola Protected Environment was first declared on 22 January 2014, in specific recognition of its threatened grassland biome and the fact that the area forms part of one of South Africa’s 22 strategic water source areas. Not only is Mabola the source of several major rivers that support communities and economic activities downstream, it is also crucial as a water source for Gauteng’s economic hub of Johannesburg and Tshwane. The proposed mine therefore represents a severe threat to South Africa’s water security, and its ability to provide water for people, livelihoods and economic activity, in two of its major cities.
Known as the Yzermyn Colliery, the mining right in question was granted by the DMRE on 19 September 2014, to the Indian-owned company Uthaka Energy (Pty) Ltd (formerly known as Atha-Africa Ventures). Since its grant, eight civil society organisations, represented by the Centre for Environmental Rights (“CER”), have launched more than 6 court battles to overturn the approvals given for the mine. Dubbed the ‘Mabola Coalition’, these organisations are committed to preventing the mine and the unacceptable threat it poses to vital protected areas and resources.
In 2018, the Coalition was successful in its application to the North Gauteng High Court to review various permissions granted for the establishment of the mine, which were ultimately set aside as unlawful. In particular, the court criticised the Ministers for relying on the processes followed by other decision-makers instead of exercising their discretion under the National Environmental Management: Protected Areas Act independently, referring particularly to their failure to apply a cautionary approach when dealing with “sensitive, vulnerable, highly dynamic or stressed ecosystems” as “an impermissible abdication of decision-making authority”. The court further enshrined the precautionary principle of South Africa’s environmental law, and stated that –
“A failure to take South Africa’s international responsibilities relation to the environment into account and a failure to take into account that the use and exploitation of non-renewable natural resources must take place in a responsible and equitable manner would not satisfy the ‘higher level of scrutiny’ necessary when considering whether mining activities should be permitted in a protected environment or not. Such failures would constitute a failure by the state of its duties as trustees of vulnerable environment, particularly where it has been stated that ‘most people would agree, when thinking of the tomorrows of unborn people that is it a present moral duty to avoid causing harm to the environment”
Most recently, and on 18 October 2022, 2 members of the Coalition appeared in the Pretoria High Court to challenge the water use licence granted to the mine on 07 July 2016. While this is the latest development in the long-running legal battle against the mine, this application represents a significant moment for both the Mabola Protected Environment and South Africa as a whole.
From its papers, it is clear that the mining company has sought to use the present appeal as an opportunity to attack and undermine public interest lawyering. The mining company is not only seeking punitive cost orders against members of the Mabola Coalition but also against the CER, which has led to seven public interest law organisations joining the matter as friends of the court. One such organisation, Groundwork, stated that –
“It is disturbing to witness a private company launch an attack on the longstanding and proud tradition of public interest lawyering in South Africa. But it is encouraging to see how a small group of motivated civil society organisations can work together for the long-term economic interests and water security of future generations, particularly in light of the coming impacts of climate change.”
As stated by the CER “Our clients are appealing against the decision of the Water Tribunal and against the granting of the water use licence in order to protect the water resources of this area in recognition of the fact that long-term water security is a human rights issue”.
After the two-day hearing on the issue of the water use licence, the Court reserved judgment which is set to be handed down in the coming weeks.
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