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CER admitted as amicus in appeal of troubling judgment against mining-affected community 

19 March 2020 at 8:05 am

On 13 February 2020the Supreme Court of Appeal (SCA) admitted the Centre for Environmental Rights as an amicus curiae (friend of the court) in an appeal by the Global Environment Trust and Others against a 2018 judgement of the Pietermaritzburg High CourtIn that judgment now under appeal, the court had refused to grant an interdict application brought by the Applicants against Tendele Coal Mining (Pty) Ltd and had ordered public interest litigants to pay the legal costs of the coal mining company.  

The CER intervened in the matter because of its concerns that the judgment opened the door for mining companies to operate illegally. The CER is also concerned that the negative costs order against public interest litigants would discourage communities from approaching the courts to defend their constitutional rights through the fear of being debilitated by having to pay the legal costs of industry and the State.  

CER Attorney and Mining Programme Head, Catherine Horsfield, says: “The costs order against the applicants flies in the face of existing law on costs, firstly because the National Environmental Management Act provides protection against costs orders for persons who acted reasonably out of a concern for the public interest or in the interest of protecting the environment, and secondly because the Constitutional Court confirmed the chilling effect such an order can have on constitutional litigation in the Biowatch case.” 

In 2018, The Global Environmental Trust, the Mfolozi Community Environmental Justice Organisation and Mr Sabelo Dladla approached the Pietermaritzburg High Court to interdict Tendele Coal Mining from continuing its coal mining operations at the Somkhele anthracite mine in KwaZulu-Natal near the border of the Hluhluwe-Imfolozi Nature Reserve until it had obtained the necessary authorisations required for conducting mining operations. They did so to defend constitutional rights, in the public interest. The High Court dismissed the interdict application and ordered the public interest applicants to pay the coal mining company’s legal costs.   

The Applicants’ application for leave to appeal to the SCA and the CER’s application to intervene as amicus in that application were granted by the Pietermaritzburg High Court last year. The Applicants have since noted their appeal of the original judgment in the SCA.  The CER then sought the consent of the parties to that appeal to be admitted as amicus in the appeal, which consent was given. Last month, the SCA admitted CER as amicus in the appeal.  

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NOTES TO EDITOR 
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For queries please contact CER Attorney and Mining Programme Head, Catherine Horsfield chorsfield@cer.org.za 

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Section 24of the Constitution of the Republic of South Africa, 1996

Everyone has the right to an environment that is not harmful to their health or well-being; and to have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures that prevent pollution and ecological degradation; promote conservation; and secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development.

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