Decision allowing mining in a protected area set aside

The high court in Pretoria on Thursday set aside decisions taken by the ministers of mineral resources and environmental affairs in 2016 that allowed the development of a new coal mine in the Mabola Protected Environment near Wakkerstroom in Mpumalanga.

The case was brought by a coalition of eight civil society organisations, which challenged a range of authorisations that permitted an underground coal mine in a strategic water source area as well as a protected area.

The Mabola Protected Environment was declared as such in 2014 by the Mpumalanga provincial government as part of the declaration of more than 70,000 hectares of protected area in the Mpumalanga grasslands.

This followed years of extensive research and planning by a number of government agencies, including the Department of Environmental Affairs, the South African National Biodiversity Institute and the Mpumalanga and Parks Agency.

In 2016, without public consultation and without notice to the coalition, the two ministers gave their permission for a large, 15-year coal mine to be built inside the Mabola Protected Environment.

On Thursday, the court set aside the permissions and referred the decision back to the two current ministers for reconsideration.

The court said the ministers did not take their decisions in an open and transparent manner or in a manner that promoted public participation, and that the decisions were therefore procedurally unfair.

The court also criticised the ministers for relying on the processes followed by other decision-makers instead of exercising their discretion under the Protected Areas Act independently.

The court said the ministers failed 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 also ordered the ministers and Mpumalanga MEC for agriculture, rural development, land and environmental affairs to pay the coalition’s legal costs on a punitive scale.

Yolan Friedmann, CEO of the Endangered Wildlife Trust said South Africa had long recognised that the grasslands of Mpumalanga, KwaZulu-Natal and Free State were important to South Africa’s natural heritage.

“The grasslands are important water sources, and home to a range of production sectors that underpin economic development. In the case of Mabola, the Protected Environment falls inside a strategic water source area which feeds some of South Africa’s biggest rivers,” Friedmann said.

Mashile Phalane, spokesperson for the Mining and Environmental Justice Community Network of South Africa said this 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."

Catherine Horsfield, attorney and mining programme head at the Centre for Environmental Rights, welcomed the judgment.

She said the judgment confirmed to government and to all developers proposing heavily polluting projects in environmentally sensitive areas in South Africa that exceptional circumstances must be shown to exist to justify that proposed development.

“South Africa is a water-stressed country, and the Mabola Protected Environment, where the coal mine would be located, has particular hydrological significance for the country as a whole.”