Constitutional Court dismisses mine company bid to mine in protected area

The Constitutional Court has had the final say on the approvals for a coal mine inside an Mpumalanga Protected Area and Strategic Water Source Area.

Earlier this month the Constitutional Court refused mining company Atha Africa’s final challenge of a 2018 high court decision to set aside ministerial approvals for the proposed coal mine inside a declared protected environment.

In November 2018, the high court in Pretoria set aside 2016 decisions by former mineral resources minister Mosebenzi Zwane and the late environmental affairs minister Edna Molewa to permit a new coal mine to be developed inside the Mabola Protected Environment.

In February, the high court refused Atha Africa’s leave to appeal against its decision.

In April , the Supreme Court of Appeal also refused Atha’s  application for leave to appeal. In July, the president of the SCA dismissed Atha’s application for her to reconsider the SCA’s decision, forcing the company to approach the Constitutional Court.

In an order dated November 6, the Constitutional Court said the application by Atha-Africa should be dismissed as it did not engage the court’s jurisdiction and, in any event, bore no reasonable prospects of success.

It dismissed the application with costs.

The Mabola Protected Area 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.

Atha-Africa Ventures was granted a mining right for coal after this area had been identified as a strategic water  source area and after the Mabola Protected Environment  was declared as a protected area.

After the mining right was granted, the various government departments responsible for the environment and water resources issued the other authorisations Atha required for its proposed mine.

This forced a number of environmental organisations to form a coalition which went to court to defend the area  from proposed new coal mining.

The coalition is represented by the Centre for Environmental Rights.

One of the coalition members, Mining and Environmental Justice Communities Network of South Africa (MEJCON-SA), said decisions to authorise coal mines should be critically scrutinised and questioned

“This is a significant victory. Our courts continue to recognise the importance of the protection of the environment, and our strategic water resources, especially at a time when we are already suffering the impacts of climate change,” said Elton Thobejane,  MEJCON-SA chairperson.

Another coalition member groundWork  said defending the Mabola Protected Environment was defending the rights of communities who will be impacted by the proposed mining activities.

“groundWork applauds this decision as it sends a strong message to decision-makers that mining and profits cannot come before communities and their sustainable livelihoods,” groundwork director Bobby Peek said.

The Centre for Environmental Rights said to proceed with its proposed coal mine in this protected area and strategic water source area, Atha would require a fresh approval under the Protected Areas Act from the new Minister of Environment, Forestry and Fisheries, Barbara Creecy, and the new Minister of Mineral Resources and Energy, Gwede Mantashe.

“However, they may not consider giving permission until the Director General: Department of Mineral Resources has decided the application’s appeal of Atha’s Environmental Management Programme (EMPR) for the proposed coal mine, which the DMR approved in 2016,” the centre said.

The coalition said throughout the court challenges, records revealed that officials in various government departments had recommended that approvals for the mine be refused, but these recommendations were overruled by their superiors.