For many months a legal battle raged around protection of the Mapungubwe Cultural Landscape and its surrounding area, focused on the plans of Limpopo Coal Company Pty Ltd, a subsidiary of Australian mining company Coal of Africa Limited, to build a largely open-cast coal mine in close proximity to the Mapungubwe National Park and World Heritage Area. Below are details of the legal and statutory proceedings instituted by civil society, as well as decisions taken by government departments.
Below you can also watch a series of short films (<3 mins) produced by GreenRenaissance about Mapungubwe, its value and the threat posed to it by inappropriate development.
Interdict application
On Tuesday 3 August 2010, a coalition of civil society organisations, concerned about the recent granting of a mining right to Limpopo Coal (Pty) Ltd by the Department of Mineral Resources, (the applicants), launched interdict proceedings against Limpopo Coal (Pty) Ltd and the Minister of Mineral Resources. Limpopo Coal (Pty) Ltd (Limpopo Coal) is a subsidiary of the Australian mining company Coal of Africa (CoAL). The applicants are represented by the Centre for Applied Legal Studies and included the Mapungubwe Action Group, the Endangered Wildlife Trust, the Association of Southern African Professional Archaeologists, Peace Parks Foundation (PPF later withdrew from the Coalition to assist the Department of Environmental Affairs with the offset negotiations under the s24G authorisation – more details below), World Wide Fund for Nature South Africa, BirdLife South Africa and the Wilderness Foundation South Africa. These applicants are all concerned with the protection and maintenance of the environmental integrity of the area in and around Mapungubwe for current and future generations as it relates to the natural habitat, ecosystems, cultural heritage and related aspects of the environment.
The interdict application arose from the granting of a mining right to construct and operate an open cast and underground coal mine known as the Vele Colliery, and the associated approval of the Environmental Management Programme, by the Department of Mineral Resources. Much of the applicants’ concern related to the location of the Vele Colliery and the impact that the mining and related operations would have on the unique and sensitive landscape within which the Vele mining area falls. The Vele mining area is situated on 8500 ha and lies less than 6km from the borders of the Mapungubwe National Park, and is adjacent to the Mapungubwe Cultural Landscape which has been declared a World Heritage Site. The area is a national treasure given its enormous historical and archaeological significance as well as the abundant biodiversity that exists in this ecologically sensitive landscape. The significance of the area has been recognised by South Africa, Zimbabwe and Botswana and in 2006, the three countries entered into an agreement to establish and develop the Greater Mapungubwe Transfrontier Conservation Area with the Mapungubwe National Park at its core.
You can download the following court papers in the interdict application launched on 3 August 2010 below.
- Notice of Motion
- Founding affidavit part 1
- Founding affidavit part 2
- Founding affidavit part 3
- Founding affidavit part 4
- Founding affidavit part 5
- Founding affidavit part 6
- Founding affidavit part 7
- First Respondent’s Answering Affidavit part 1
- First Respondent’s Answering Affidavit part 2
- First Respondent’s Answering Affidavit part 3
- First Respondent’s Answering Affidavit part 4
- First Respondent’s Answering Affidavit part 5
- First Respondent’s Answering Affidavit part 6
- First Respondent’s Answering Affidavit part 7
- First Respondent’s Answering Affidavit part 8
- First Respondent’s Answering Affidavit part 9
- First Respondent’s Answering Affidavit part 10
- First Respondent’s Answering Affidavit part 11
- First Respondent’s Answering Affidavit part 12
- First Respondent’s Answering Affidavit part 13
- First Respondent’s Answering Affidavit part 14
- First Respondent’s Answering Affidavit part 15
- Centre for Child Law’s application to intervene as amicus curiae
- First Respondent’s Answering Affidavit to Centre for Child Law’s application to intervene as amicus curiae
- Centre for Child Law’s Replying Affidavit
- Applicants’ Replying Affidavit part 1
- Applicants’ Replying Affidavit part 2
- Applicants’ Replying Affidavit part 3
- Applicants’ Replying Affidavit part 4
- Applicants’ Replying Affidavit part 5
- Applicants’ Replying Affidavit part 6
- Applicants’ Replying Affidavit part 7
- Applicants’ Replying Affidavit part 8
In July 2011, the First Respondent filed replicating papers in the interdict application.The Applicants have not filed papers in response, and the interdict application has not been set down for hearing.
Internal appeals against the mining right and the EMPR
The applicants lodged internal appeals against both the decision to grant the mining right and the decision to approve the Environmental Management Programme, and a decision on these appeals is pending. The applicants launched the interdict application in an attempt to prevent further destruction of the area while the legal disputes are pending. The parties still await decisions on these appeals.
Compliance notice
Two days after the interdict was launched, on 5 August 2010, the Department of Environmental Affairs (DEA) confirmed that its Environmental Management Inspectorate had issued a Compliance Notice to Limpopo Coal to cease with activities that are in contravention of the National Environmental Management Act (NEMA). The Notice related to CoAL’s non-compliance with the provisions of the NEMA in that they are said to have commenced with activities listed in the Environmental Impact Assessment (EIA) Regulations promulgated in terms of the NEMA without the required prior environmental authorisation. These activities included the construction of roads, the above ground storage of dangerous goods, activities within the 1:10 floodline of the Limpopo River, the construction of a sludge dam and the installation of a water pipeline network. The compliance notice instructed Limpopo Coal to cease all construction related activities on the access roads and roads falling within, and outside the mining right area, within 24 hours of issuance of the notice. The notice further stipulated that all the other activities listed above, including the construction of pipelines, storage facilities and the dam, and the removal of vegetation must cease in time frames ranging from 24 hours, 48 hours, to 3 days respectively, on receipt of the Notice. The mine was also not permitted to increase the current development footprint.
Limpopo Coal objected to the compliance notice, and requested a suspension from the Minister of Water and Environmental Affairs in relation to all or some of the instructions set out in the notice, which was partially granted. On 9 May 2011, the Minister of Water and Environmental Affairs refused Limpopo Coal’s objection to the compliance notice. You can download that decision here.
You can download both the DEA pre-compliance notice and the compliance notice dated 5 August 2010 below.
Section 24G applications
Subsequent to being issued with the compliance notice by DEA, Limpopo Coal submitted two applications for rectification under section 24G of NEMA to DEA.
On or about 11 May 2011, Coal of Africa paid an administrative fine of R9,25 million to the DEA in terms of s.24G(2A) of NEMA. On 5 July 2011, the DEA granted an environmental authorisation for certain of the illegal activities under s.24G. You can download that document here, and key documents in the section 24G applications can be downloaded here.
On 25 July 2011, seven NGOs lodged a Notice of Intention to Appeal the decision to award an environmental authorisation in the first s.24G application. That appeal was later withdrawn in the context of negotiations between the Save Mapungubwe Coalition and CoAL.
On 1 September 2011, CoAL signed a Memorandum of Agreement with SANParks and the DEA in accordance with the s.24G authorisation. A copy of the MoA and more information about this is available on CoAL’s website here.
Directive in terms of s.19(3) of the National Water Act, 1998
On 23 August 2010, the Department of Water Affairs issued a directive to CoAL in terms of s.19(3) of the National Water Act, 1998, inter alia to cease all unlawful water use on site. That directive was suspended on 27 May 2011.
Water use licence application
Limpopo Coal Pty Ltd submitted a water use licence application (WULA) to the Department of Water Affairs in November 2009. Despite objections from a number of NGOs and other affected parties, the DWA granted a water use licence to Limpopo Coal on 29 March 2011. On 28 July 2011, five NGOs, represented by the Centre for Environmental Rights, launched an appeal with the Water Tribunal against the decision to award this licence to Limpopo Coal.
- Media statement by the Coalition dated 28 July 2011: NGO Coalition appeals water use licence granted to CoAL
- Notice of Appeal
- Supporting Affidavit of Nick Hiltermann pp. 1-10
- Supporting Affidavit of Nick Hiltermann pp. 11-20
- Supporting Affidavit of Nick Hiltermann pp. 21-30
- Supporting Affidavit of Nick Hiltermann pp. 31-40
- Supporting Affidavit of Nick Hiltermann pp. 41-50
- Supporting Affidavit of Nick Hiltermann pp. 51-60
- Supporting Affidavit of Nick Hiltermann pp. 61-70
- Supporting Affidavit of Nick Hiltermann pp. 71-80
- Supporting Affidavit of Nick Hiltermann pp. 81-90
- Supporting Affidavit of Nick Hiltermann pp. 91-100
- Supporting Affidavit of Nick Hiltermann pp. 101-110
- Supporting Affidavit of Nick Hiltermann pp. 111-120
- Supporting Affidavit of Nick Hiltermann pp. 121-130
- Supporting Affidavit of Nick Hiltermann pp. 131-140
- Supporting Affidavit of Nick Hiltermann pp. 141-150
- Supporting Affidavit of Nick Hiltermann pp. 151-160
- Supporting Affidavit of Nick Hiltermann pp. 161-170
- Supporting Affidavit of Nick Hiltermann pp. 171-177
- Affidavit of Carin Bosman
- Affidavit of Sean Muller
On 8 August 2011, Limpopo Coal submitted an urgent petition to the Minister of Water Affairs requesting her to direct, in accordance with s.148(2)(b) of the National Water Act, 1998 that the decision to grant Limpopo Coal with a water use licence remain in full force an effect despite the appeal. The Appellants filed representations to this petition on 7 September 2011.
- Limpopo Coal’s petition to the Minister
- Annexure A to the petition: “Limpopo Coal now has all the authorizations it needs to proceed”
- Annexure B to the petition: “Support for and benefits to flow from the Vele colliery”
- Annexure C to the petition: “The I&AP process”
- Annexure D to the petition: “Grounds of appeal”
- Appellants’ representations to the petition
- Annexures to Appellants’ representations
On about 19 October 2012, the Minister of Water Affairs decided to lift the automatic suspension of the water use licence and to allow Limpopo Coal to commence water use without having to wait for the Water Tribunal to hear the Coalition’s appeal.
Failure to provide reasons and amendment of the water use licence
After the water use licence was issued to Limpopo Coal on 29 March 2011, it approached the DWA to amend various conditions of the licence:
- Letter from Coal of Africa requesting amendment of the licence dated 29 April 2011
- Letter from the DWA Acting Director-General to Coal of Africa dated 15 July 2011 proposing certain amendments
- Letter from Coal of Africa to DWA dated 18 July 2011 accepting these amendments
- Letter from the Appellants’ attorneys to the DWA asking for clarity on the status of the amendment and requesting public participation in accordance with the National Water Act (7 September 2011)
- Letter from Limpopo Coal’s attorneys dated 12 September 2011 attaching the formal amendment of the licence, signed by the DWA Acting Director- General on 17 August 2011
- Letter from DWA’s Legal Services dated 4 August 2011 ascribing the failure to provide reasons for the decision to award the licence to the amendment (received by registered mail on 12 September 2011).
Criminal prosecution
The DEA has, on more than occasion, confirmed that a criminal investigation into alleged criminal offences by Limpopo Coal has been completed and a docket handed to the National Prosecuting Authority for a decision. (See also the Parliamentary Questions below.)
Parliamentary Questions
A number of questions have been asked of and answered by various ministers in the National Assembly about this matter:
- 2010-Morgan-Q1827-Non-compliance at Vele Colliery 4 June 2010
- 2010-Morgan-Q2283-Details of compliance notice against Vele and subsequent actions 20 Aug 2010
- 2011-Kalyan-Q956-Min of Water Affairs on charges against directors of Coal of Africa 18 March 2011
- 2011-Morgan-Q1267-Details of Vele water use licence 15 April 2011
- 2011-Kalyan-Q1406-Follow up on charges against Coal of Africa 27 May 2011
PAIA applications
The Centre for Environmental Rights has submitted a number of PAIA applications for records in relation to this matter.
The following records have been provided to the CER by the Department of Environmental Affairs (DEA):
- Letter from DEA to the Department of Mineral Resources (DMR) dated 23 January 2009
- Letter from DEA to DMR dated 12 May 2009
- Letter from DEA to DMR dated 20 July 2009
- Letter from DEA to DMR dated 26 March 2010
Pre-compliance notices issued by DEA on 6 November 2009, 25 May 2010 and 18 June 2010 are unfortunately to big to upload, even in compressed form. Please contact the Centre at info@cer.org.za for a copy of these documents. You can however download the following:
- Annexure C1 to the 18 June 2010 pre-compliance notice (photographs)
- Annexure C2 to the 18 June 2010 pre-compliance notice (photographs)
Negotiations
On 24 November 2011, the Save Mapungubwe Coalition concluded a Memorandum of Understanding with CoAL and Limpopo Coal. You can download the following documents relating to these negotiations below:
- Memorandum of Understanding dated 24 November 2011
- Media statement by the Coalition dated 24 November 2011: NGO Coalition aims to set benchmark for coal mining best practice (see also CoAL’s statements here)
- Media statement by Coalition dated 6 June 2012: Feedback on progress in negotiations between the Save Mapungubwe Coalition and Coal of Africa Limited regarding the Vele colliery
- Media statement by Coalition on 7 December 2012: The Save Mapungubwe Coalition withdraws from the Memorandum of Understanding with Coal of Africa Limited, and joins the Environmental Monitoring Committee for the Vele Colliery
Links and other documents
- Questions and answers about the Save Mapungubwe campaign
- Save Mapungubwe website
- Endangered Wildlife Trust webpage on the Save Mapungubwe campaign
- Coal of Africa Limited‘s website
- South African Government‘s webpage on the Order of Mapungubwe