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Local groups had been arguing that the mine would bring much-needed relief to the poverty-stricken Pixley ka Isaka Seme Local Municipality in Volksrust where unemployment is high.

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Sizwe sama Yende

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Green lobby groups have scored another victory in a protracted legal battle with an Indian mining company that intends to establish a coal mine in a protected and ecologically sensitive area in Mpumalanga province.

Uthaka Energy (Pty) Ltd’s last hope to extract coal in Mabola near Wakkerstroom was pinned on former Mpumalanga Agriculture, Rural Development, Land Reform and Environment MEC, Vusi Shongwe, who circumvented the environmentalists complaints by excluding the targeted mining section from the protected area.

The Mpumalanga High Court has however set aside and reviewed Shongwe’s decision – meaning that Uthaka Energy still cannot start mining after the activists opposed every single permit and authorisation the mining company was granted and won all the appeals heard as far as the Constitutional Court.   

Shongwe’s rationale to exclude the area earmarked for Yzermyn Colliery in on January 15 2021 was:

·      To strike a balance between using natural resources for socio-economic benefits and promoting environmental protection; and

·      To promote co-existence of mining activities and conservation within the area on the properties.

The group, which comprises – Mining and Environmental Justice in South Africa, groundWork, Birdlife SA, Endangered Wildlife Trust, Federation for a Sustainable Environment, Association for Water and Rural Development and Bench Marks Foundation – have been arguing through their lawyers from the Centre for Environmental Rights that the Mabola Protected Area was a wetland and source of fresh water that would contaminated by mining activities.

The province accounts for a high proportion of South Africa’s strategic water source areas – with over 10,000 wetlands and with the waters of at least five of South Africa’s important river systems rising in its highlands – and plays a critically important role in terms of regional and national water security. 

The area also has a place in biodiversity as it had a number of plant species that do not occur in other places. Mpumalanga occupies only six percent of South Africa’s land surface but holds 21% of its plant species with nearly a quarter of its vegetation types nationally gazetted as threatened.

Local groups had been arguing that the mine would bring much-needed relief to the poverty-stricken Pixley ka Isaka Seme Local Municipality where unemployment is high.

In reviewing and setting aside Shongwe’s decision on July 18, Acting Judge M Moleleki said that  Shongwe did not act within the ambit of the enabling legislation.

“As such, his conduct was unlawful, unreasonable and procedurally unfair in failing to take relevant considerations into account and by taking irrelevant considerations into account,” Moleleki said.

Moleleki said that  it was  not in dispute that mining activities led to loss of biodiversity and contamination of the soil and utilised a large amount of water.  This impacted the water quantity as well as its quality due to contamination through acid mine drainage.

“The reduction in water quantity and quality also affects the amount of water available for human consumption. This has a detrimental impact on people’s access to water and threatens water security at both local and national level,” said the judge.

The court said that Shongwe was biased and MEC did not approach this matter with his mind open to persuasion but had shut his mind to any submissions made or evidence tendered in support of the case he had to decide.

“The MEC publicly associated himself as being in favour of the establishment of the mine in the Mabola Protected Environment. Before the MEC made his decision to exclude the properties known, he made a public statement on 8 May 2020 that he was in support of the mine. He was also quoted by the City Press Newspaper article as saying he was committed to the opening of the mine as it would boost the economy,” Moleleki said.

“The MEC was required to conduct himself in a manner which showed neutrality and openness to all competing interests and considerations. The exclusion decision falls to be reviewed and set aside,” he added.