Centre for Environmental Rights – Advancing Environmental Rights in South Africa

On 22 May 2019, the Water Tribunal rejected the appeal of two non-profit civil society organisations and Agri Mpumalanga against a water use licence issued to coal mining company Atha-Africa Ventures (Pty) Limited, and confirmed the licence issued by the Department of Water & Sanitation in 2016.

The non-profit organisations who brought the appeal are part of a larger coalition of civil society organisations that have resisted this new coal mine for many years because it would be situated inside the declared Mabola Protected Environment and inside a Strategic Water Source Area.

The proposed 15-year mine would fall inside the Enkangala Drakensberg Strategic Water Source Area, one of 22 areas recognised to provide more than 50% of South Africa’s freshwater.

In November 2018, the Pretoria High Court set aside the approvals given for this coal mine inside a declared protected area by former Ministers Edna Molewa and Mosebenzi Zwane, with a punitive costs order against both Ministers. Atha’s attempt to appeal that High Court decision was turned down by the Pretoria High Court in January 2019, and again by the Supreme Court of Appeal in April 2019.

This means that, despite the Tribunal’s ruling on the water use licence, Atha is in any event not able to mine in the protected area without obtaining new approvals from the Ministers of Environmental Affairs and Mineral Resources.

In its ruling, the Tribunal confirmed the water use licence despite acknowledging that the proposed coal mine would contaminate both groundwater and surface water.

As a condition of its ruling, the Water Tribunal required Atha-Africa to provide proof to the Department of Water & Sanitation of financial provision for rehabilitation of damage to be caused by the proposed mining. It also required that the Department review and confirm the adequacy of that financial provision, and if necessary require Atha-Africa to provide additional financial provision under the Water Act, before any mining could commence.

The Department of Water & Sanitation has historically left the responsibility for financial provision for post-closure water treatment costs in the hands of the Department of Mineral Resources. That department, in turn, has historically not taken security for the costs of treatment of water polluted by mines. As a result, the state holds little or no security for the cost of post-closure treatment of polluted water caused by mining companies – particularly problematic for coal mining, where water pollution is severe.

Atha’s own experts have estimated that this new coal mine would cause decant of contaminated mine water well after the mine closes. If the mine starts in 2019, mining would take place until 2034, and polluted water would start to decant around 2079. Atha’s experts failed to assess how long it would take thereafter for the contaminated water to stabilise, but the law requires treatment of contaminated water to continue until the water quality stabilises. This means that polluted water could decant until the end of the century.

Despite this, Atha has provided a financial guarantee for all its closure costs of only R5.758 million  – and only R304 966 of that amount is for “water management”. Treatment of polluted water from coal mines is typically extremely costly. “It is not clear whether this proposed mine would even be financially viable if the full cost of water treatment is, as it should be, borne by Atha,” says Mariette Liefferink, CEO of Federation for a Sustainable Environment, one of the appellants in the case.

The two non-profit organisations are considering whether to challenge the Tribunal’s ruling in court. In addition to the successful High Court case against this mine last year, there are two other pending High Court cases against other approvals given for this coal mine, and an application for rezoning of the area outside Wakkerstroom in Mpumalanga, from agriculture and conservation to mining, remains outstanding.

ENDS

Media queries: Mining Programme Head Catherine Horsfield [email protected] or 021 447 1647.

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