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Defining Moments of 2019: Defending a Strategic Water Source Area all the way to the Constitutional Court

4 December 2019 at 9:00 am

Demonstration by activists from Coalition member Earthlife Africa outside the Pretoria High Court in June 2017. Image: James Oatway for CER
Demonstration by activists from Coalition member Earthlife Africa outside the Pretoria High Court in June 2017. Image: James Oatway for CER

For the past 5 years, the Centre for Environmental Rights has represented a coalition of civil society organisations defending a declared Protected Area and Strategic Water Source Area in Mpumalanga from proposed new coal mining. One aspect of this work has centered on setting aside the permission given for a proposed new coal mine inside the Mabola Protected Environment by former Mining and Environment Ministers Zwane and Molewa – a special permission required under the Protected Areas Act.

In an important victory, the High Court first set aside this permission in November 2018, granting the Coalition’s application with a punitive costs order against the Ministers and the MEC for Environment in Mpumalanga. In January 2019, the High Court refused mining company Atha Africa’s application for leave to appeal the court’s decision to set aside permissions for a new coal mine inside a declared protected environment. Soon after that, the SCA also refused them leave to appeal.

In November 2019, the Constitutional Court had the final say and refused the mining company’s final challenge of the 2018 High Court decision to set aside Ministerial approvals for the proposed coal mine. The Constitutional Court dismissed the challenge with costs, vindicating the Coalition’s longstanding campaign in defence of this important area.

Prior to the Constitutional Court’s decision, in August 2019, the Mpumalanga MEC published notice of his intention to exclude the proposed mining area from the Mabola Protected Environment. The Coalition submitted a comprehensive objection to this proposed exclusion, arguing that there is no rational or justifiable basis for any exclusion, particularly in the light of available science and policy highlighted in the Coalition’s objection.

The Coalition has had to bring three other judicial review applications and several appeals to set aside the various permissions given for this proposed new coal mine, all of which are still pending, highlighting the immense burden carried by civil society organisations in undoing poor and irrational decision-making that places South Africa’s strategic water resources at risk.

The Coalition defending the Mabola Protected Environment against this proposed coal mine and that secured the High Court victory that the Constitutional Court has left intact, comprises the Mining and Environmental Justice Communities Network of South AfricagroundWorkEarthlife AfricaBirdLife 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.

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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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