First salvo fired in court battle to prevent Mabola mining

Johannesburg - No mining can commence inside the contested Mabola protected area unless the Indian mining company involved provides three weeks' notice of its intentions, the North Gauteng High Court Pretoria ruled on Wednesday morning.

The order comes ahead of a precedent-setting legal battle which is likely to end up in the Constitutional Court and could determine how future mining applications in environmentally sensitive areas are handled.

For the moment the fight centres on protecting the water-rich Mabola protected area outside Wakkerstroom after Indian mining company Atha-Africa Ventures planned to develop the Yzermyn coal mine in the area.

Mabola lies in the catchment area of several major rivers including the Tugela, the Vaal, the Usutu and Pongola.

Urgent interdict

On Tuesday last week the Centre for Environmental Law (CER) filed an interim interdict application against Atha-Africa on behalf of eight civil organisations to prevent the mine from opening. The coalition asked the court to interdict Atha-Africa from starting any mining activities, unless the mining house had received all the proper environmental approvals as well as a rezoning plan.

This application in the high court in Pretoria is aimed at setting aside Environmental Minister Edna Molewa’s decision to grant a mining right on the basis that it will cause unacceptable pollution and degradation of the environment, CER director Melissa Fourie said.

In November Molewa signed off her approval for the mine, but her decision was only made public in January 2017.

The government’s argument is that Mabola would be a “mixed-land use” area. It says all damages to the area can be mitigated by Mabola’s high water yield, and cultural values will converge with mining in the mixed land use.

Controversial approvals

Atha-Africa received a mining right in 2015, shortly after Mabola was declared a protected area. Since then, the mining house has received licences and approvals from the Mpumalanga Department of Environmental Affairs, the Department of Water and Sanitation and Molewa to start the mine.

All these approvals have already been appealed by the CER, including the authorisation by the MEC for environmental affairs in Mpumalanga. The appeals are still being considered, and the CER argues that this has to be concluded before any mining can start.

Fourie believes the eight civil organisations have an excellent chance of success in what will probably be an extended battle that will go to South Africa’s highest court.

Before the CER filed the urgent interdict, the coalition repeatedly requested Atha-Africa not to start any mining activities, but the Indian mining giant refused.

"It did not give the CER any other option but to turn to the courts."

Atha-Africa, which opposed the interdict, said there is no need for urgency and that it would give the necessary advanced warnings as CER requested. The mining company said it has all the necessary licences, including a mining right, a water licence and environmental approval, as well as approval for the rezoning of the land.

Apart from the urgent interdict, five other legal challenges have been filed against the mine including a judicial review of the mining right, an appeal against the environmental authorisation and water licences and a judicial review against Molewa's decision to allow mining in a protected area.