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:
- 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;
- The MEC unlawfully circumvented the 2018 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;
- 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;
- 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;
- 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;
- 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;
- 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
- 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.
Yolan Friedmann, the CEO of Endangered Wildlife Trust says: “The Mpumalanga grasslands are critical water sources, and home to a range of production sectors that underpin economic development and human livelihoods. In the case of Mabola, the Protected Environment falls inside a strategic water source area which feeds some of South Africa’s biggest rivers. Moreover, protected areas help protect our biodiversity and important natural ecosystems which protect the human right to a clean and healthy environment and unpin economic sustainability and job creation in the long-term.”
The Centre for Environmental Rights welcomes the judgement. “Our clients are deeply heartened by the judgement and that the Court acknowledged their submission that the strategic importance of Mabola has intensified since its declaration due to our country’s water scarcity and the imperative to facilitate South Africa’s resilience to climate change. The Mabola Protected Environment has particular hydrological significance for the country as a whole being part of a Strategic Water Source Area (SWSA). The MEC’s decision undermined South Africa’s existing protected area network. Had the exclusion of the properties not been set aside, a dangerous precedent would have been set for the withdrawal of protection for protected areas in the interest of unjustifiable commercial ventures.,” says Tatenda Muponde, attorney at the CER.
The Mabola Protected Environment was declared under the Protected Areas Act in 2014 by the Mpumalanga provincial government. This followed years of extensive research and planning by a number of government agencies, including the Department of Environmental Affairs, the South African National Biodiversity Institute and the Mpumalanga Tourism & Parks Agency.
In January 2021, the MEC purported to exercise his powers in terms of section 29 of the Protected Areas Act to deproclaim four properties to enable a coal mine to go ahead. The Mabola coalition challenged the decision on grounds that it was unlawful, biased and eroded protection for an area that is ecologically sensitive and economically important as a strategic water source area for South Africa as a whole. Read the Coalition’s statement on the MEC’s decision here.
The coalition defending the Mabola Protected Environment comprises the Mining and Environmental Justice Communities Network of South Africa, groundWork, Earthlife Africa Johannesburg, BirdLife South Africa, the Endangered Wildlife Trust, the Federation for a Sustainable Environment, the Association for Water and Rural Development (AWARD) and the Bench Marks Foundation.
The Coalition is represented by the Centre for Environmental Rights NPC.
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BACKROUND
Read more about the 2021 victory for the Mabola coalition: Constitutional Court dismisses coal mining company’s bid to start mining; and the risks posed by mining in the area: Mining in Mabola: The slow violence of environmental degradation
