Sizwe sama Yende
A legal tussle between an Indian company and green lobby groups is not ending soon as they try to reverse the Mpumalanga government’s manouvre that saw pieces of land falling under a protected area being excluded to allow for the establishment of a new coal mine.
Uthaka Energy (Pty) Ltd has been trying to build its Yzermyn Colliery in Mabola near Wakkerstroom over the past nine years, but environmental organisations represented by the Centre for Environmental Rights (CER), have put a strong legal challenge since then to protect the area’s sanctity as a fresh water source.
CER’s court papers summarise the organisation’s argument as follows:
“Mpumalanga is well known for its globally important biodiversity. Its ecosystems are characterised by high levels of both plant and animal diversity and a significant number of unique species that are not known to occur anywhere else. 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.”
The papers indicate that the province’s grasslands formed part of the most biodiverse biome in South Africa and contain many unique, rare, and threatened species and ecosystems.
“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. Its freshwater ecosystems are home to important biodiversity and represent high value ecological infrastructure for delivering water for human use.”
CER has managed to get the court to withdraw the company’s mining permit and then successfully opposed authorisations that were given by the Department of Environmental Affairs (DEA), Department of Water and Sanitation and the provincial environmental affairs department.
Uthaka Energy’s struggle began in November 2018 when the Pretoria High Court set aside the 2016 decisions of then DEA minister Edna Molewa and her mineral resources counterpart Mosebenzi Zwane that gave the company permission to mine in the Mabola Protected Environment.
When all had failed, then Mpumalanga Agriculture Rural Development Land Reform and Environment MEC, Vusi Shongwe, came to Uthaka Energy’s rescue in 2021. Shongwe decided to excluded areas earmarked for the establishment of the mine from the Mabola Protected Area.
Shongwe argued for balance between job creation and nature conservation, which he said could be achieved.
The mine will definitely create direct and indirect jobs in the Pixley Ka Isaka Seme Local Municipality in Volksrust – an impoverished area where the unemployment rate is very high.
Mabola Protected Environment was declared as a protected environment in terms of section 48 of the National Environmental Management Protected Areas Act, 2003 (NEMPAA) in 2014 by former MEC Pinky Phosa due to its hydrological and ecological sensitivity.
CER has applied for review and setting aside of Shongwe’s decision in the Mpumalanga Division of the High Court. The court has reserved judgement since the last sitting on April 16.
CER has argued that Shongwe’s decision was unlawful because it circumvented of section 48 of NEMPAA and usurped the powers of the Minister of Forestry Fisheries and Environment, Barbara Creecy.
Furthermore, CER argued that Shongwe’s decision did not consider the available science, policy, and law.
The MEC’s decision did not consider the available science, policy, and law, and failed to consider the impacts of mining and South Africa’s international obligations in protecting the environment.