Mabola Protected Environment saved from coal mining

Must watch! Incredible drone footage of the Mabola Protected Environment. Photo & drone footage: Johnny Miller/AfricanDrone

• On Thursday 18 July 2024, the Mbombela High Court overturned the 2021 decision by former Mpumalanga MEC responsible for Environmental Affairs, MEC Vusi Shongwe, to exclude four properties from the Mabola Protected Environment.
• This ruling blocks the development of a new coal mine in the Protected Area near Wakkerstroom, Mpumalanga.

The case was brought by a coalition of seven civil society organisations challenging several authorisations for a proposed new underground coal mine in a strategic water source area and Protected Area.

The Court set aside the decision by the MEC and upheld all of the Coalition’s grounds of review. In a reasoned judgment, the Court found that:

1. Since the area in question comprises wetlands and grasslands that are classified as irreplaceable Critical Biodiversity Areas, the MEC ought to have considered the environmental principles in section 2 of the National Environmental Management Act, 1998 (NEMA) with a strict measure of scrutiny before he made his decision;
2. The MEC unlawfully circumvented the2018 Judgement of the Pretoria High Court which set aside permission originally given by the erstwhile Ministers of Environment and Minerals respectively to the mining company to mine in the Protected Area;
3. The MEC’s decision is flawed as it failed to consider the available science, policy and law regarding the declaration of Mabola in order to protect clean water supply and other ecosystem services;
4. On the proper application of the precautionary principle, the exclusion decision should not have been made because, while it is common cause that there will be damage to wetlands, the precise nature and extent of that damage is unknown. In these circumstances the MEC ought to have erred on the side of caution and protection of the environment;
5. The MEC failed to uphold the principles of co-operative governance in his decision-making process because he failed to consider the circumstances and material interests of other organs of State, including the Minister for Environment;
6. The MEC had publicly supported the mine over the environmental significance of the area and the long-term consequences of mining there which indicated bias or a reasonable suspicion of bias;
7. The MEC failed to take into account the impacts of mining in the area where the proposed benefits of the mining are incomparable to the environmental harm that will be caused by the mine, impacting the local community; and
8. Where the mine will negatively affect the quality and ecological importance of wetlands, the MEC failed to take into account South Africa’s international environmental obligations.

The court criticised the MEC’s failure to take into account South Africa’s obligations to protect and promote the conservation of wetlands in its territory in a situation where wetlands play a major role in moderating the quantity and quality of water of major rivers.

“This judgement is an important victory in ensuring that our protected areas remain intact. Protected Areas are vital for safeguarding the natural environment for improved human health and wellbeing. Environmental protection is essential for the sustainability of human health, and indeed, life itself.  We hope this judgement will signal to our government the importance of decision-making that balances the need to protect the environment for the wellbeing of the people weighed up against inappropriate commercial interest of the few.” says Margaret Molomo, Chairperson of the Mining and Environmental Justice Community Network of South Africa.

The Coalition is represented by the Centre for Environmental Rights NPC.

Read the latest judgement here

Author: Bryan Groenendaal