ConCourt overturns Zwane, Molewa's permission to mine in protected area

The Constitutional Court has had the final say on the approval of a coal mine inside a protected area in Mpumalanga.

The court earlier this month refused mining company Atha-Africa Ventures’ final challenge of a 2018 high court decision to set aside ministerial approvals for the proposed coal mine inside a declared protected environment and a strategic water source area.

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 allow 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 bore no reasonable prospects of success. It dismissed the application with costs.

The Mabola protected area, near Wakkerstroom, is part of more than 70,000ha of grasslands in Mpumalanga that was protected under the Protected Areas Act by the Mpumalanga provincial government in 2014.

Atha-Africa was granted mining rights for coal after the area was identified as a strategic water source area and after the Mabola protected environment was declared a protected area.

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

This caused 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, the 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,” said Elton Thobejane, chairperson of MEJCON-SA.

"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."

Another coalition member, groundWork, said defending the Mabola protected environment was defending the rights of communities that would be affected 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,” said groundWork director Bobby Peek.

The Centre for Environmental Rights said to proceed with its proposed coal mine in this protected 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.

The coalition said that 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.