Mabola Protected Environment
Earthlife Africa Johannesburg, BirdLife South Africa, Mining and Environmental Justice Community Network of South Africa, Endangered Wildlife Trust, Bench Marks Foundation, groundWork, Federation for a Sustainable Environment and the Association for Water and Rural Development v the Minister of Mineral Resources, Atha-Africa Ventures (Pty) Ltd and others
In this matter, eight civil society organisations are challenging the decisions by various organs of state to authorise Indian-owned mining company Atha-Africa Ventures (Pty) Ltd’s Yzermyn Colliery in the Mabola Protected Environment near Wakkerstroom in Mpumalanga Province. The organisations opposing this particular mine do so because the proposed mine would be inside a declared protected area and a strategic water source area. It will threaten water security not only in the local area, but in the region. The damage that this mine would do to water resources cannot be undone. All these organisations are deeply committed to job creation and improving the quality of life of local people, but also know that coal mining has devastated the lives, health and well-being of communities across the Highveld.
Resources for media
- Defending our water: why eight civil society organisations are challenging this matter
- Fact sheet: Proposed Mpumalanga coal mine – who benefits, and at what cost?
- Must watch: Incredible drone footage of Mabola Protected Environment, under threat from coal mining
- Our interactive website: Why we must secure our water source areas now
- CSIR’s National Freshwater Ecosystem Priority Areas Atlas
- Strategic water source areas: Combining surface and groundwater to enhance water security
- Ministerial Brief: Declaration of Strategic Water Source Areas as Protected Areas: towards South Africa’s water security, June 2018
Legal challenges
Judicial review of the decision by the Minister of Mineral Resources to grant a mining right in terms of the Mineral and Petroleum Resources Development Act, 2002
Internal appeal to the Minister of Mineral Resources (30 March 2015)
- Internal Appeal to the Minister of Mineral Resources and Annexures 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17 and 18 (30 march 2015)
- Atha-Africa Ventures’ response to the appeal (24 April 2015)
Judicial review (10 September 2015)
- Notice of Motion and Founding Affidavit and annexures PML1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19 and 20
- Notice to oppose by Atha-Africa Ventures (Pty) Ltd
- Authority to act
- Minister of Mineral Resources and Director-General of the Department of Mineral Resources’ notice in terms of Rule 53
- Application to compel the Minister to produce his Rule 53 record
- Supplementary Founding Affidavit
- Notice by Atha-Africa Ventures (Pty) Ltd requiring the applicant to provide it with documents referred to in the founding affidavit and supplementary affidavits
- Further Supplementary Founding Affidavit
- Amendment to notice of motion
- Atha-Africa Ventures’ answering affidavit and annexures (Part 1, 2, 3, 4, 5)
- Second amendment to the applicants’ notice of motion
- Applicants’ notice in terms of Rule 16A
- Applicants’ replying affidavit (19 December 2017)
- Intervention Application by The Voice (19 October 2020)
Appeal against the decision by the Department Mineral Resources to approve Atha’s environmental management programme in terms of the Mineral and Petroleum Resources Development Act, 2002
- Grounds of appeal (13 October 2016)
- The Responsible Authority’s Reasons for Decision
- Appellants’ Responding Statement in terms of Regulation 74(8) of the MPRDA Regulations, 2004, to the reasons for decision of the Mpumalanga Regional Manager (15 July 2019)
- Annexure T (Record of Decision re EMPR);
- Annexure U (Refusal Memorandum);
- Annexure V (Granting Memorandum);
- Annexure W (Withdrawal Memorandum).
- Atha-Africa’s Replying Submission in terms of Regulation 74(7) of the MPRDA Regulations (8 August 2019):
- Appellants’ responding statement in terms of regulation 74(8) of the MPRDA Regulations, 2004, to Atha-Africa Ventures (Pty) Ltd’s replying submission (9 September 2019)
- Annexures to Statement: Annexure AA_MPAES Annexure BB_ Endangered Ecosystem Annexure CC_ NFEPA Atlas Annexure DD_ SWSA 2013 Annexure EE_ Mining and Biodiversity Guideline Annexure FF_ MPE Annexure GG_ SWSA 2018 Annexure HH_ WWF Letter to Bunengi Holdings (22 June 2011) Annexure N1_ Final Amended Environmental Impact Report Annexure T_ GCS financial provision review Annexure U_ SAS May 2015 Wetland Ecological Assessment Report Annexure V_ GCS Review Annexure W_MBCP Aquatic Annexure X_MBCP Terrestrial Annexure Y_ MBSP Annexure Z_ NPAES
Judicial review of the decision by the Mpumalanga Department of Agriculture, Rural Development and Environmental Affairs to grant environmental authorisation in terms of the National Environmental Management Act, 1998
Internal appeal
- Notice of intention to appeal (27 June 2016)
- Grounds of Appeal and Annexures A, B, C, D, E, F, G, H and I (19 August 2016)
- Responding statement by Atha-Africa Ventures (Pty) Ltd (undated)
- Answering Statement and Annexure J and K (18 November 2016)
- Appellants’ Submissions in the Appeal 15-17 August 2017 and Annexure A (14 August 2017)
- The appeal decision (23 November 2017)
Judicial review
- Notice of motion (22 May 2018)
- Founding affidavit and annexures (part 1 and part 2)
- Applicants’ Supplementary Founding Affidavit and Annexures ET1 and ET2, ET3, ET4, ET5, ET6, ET7 – ET12, ET13 – ET15, ET16 – ET20 ET21 (18 September 2019).
- Third Respondent’s (Atha) Answering Affidavit and Annexures.
- State respondents answering affidavit and Annexures P 1,Annexures P 2, Annexures P 3, Annexures P 4.
- Founding Affidavit of The Voice Intervention application
- Court Order in The Voice application to intervene
Appeal against the decision by the Department of Water and Sanitation to grant a water use licence in terms of the National Water Act, 1998
- Notice of appeal and grounds of appeal (16 December 2016)
- The suspension of the water use licence
- Request to waive the suspension of the water use licence of Atha-Africa Ventures (Pty) Ltd pending the outcome of the appeal
- Representations by the appellants and annexures A and B
- Decision of the Minister of Water and Sanitation to uplift the suspension of the water use licence pending the outcome of the appeal and reasons for the decision
- Notice of appeal as amplified, annexures A, B1, B2, B3, B4, B5, C, C1, C2, D, D1, E, F, G1, G2, H, H1, H2, H3, I1, I2, J, K, L, M, N, O1, O2, P and Q as well as the covering letter (1 December 2017)
- The Answering affidavit of the Director-General of the Department of Water and Sanitation
- Notice of irregular step
- Atha Africa Ventures’ response to the original appeal
- Atha Africa Ventures’ response to the amplified appeal
- Appellants’affidavits:
- Andrew Johnstone (annexures AJ1, AJ2, AJ3, AJ4, AJ5, AJ6, AJ7, AJ8 and AJ9)
- David Le Maitre
- Suzanne Powell
- Presentation by expert for the appellants
Water Tribunal Decision (22 May 2019)
Appeal against the decision of the Water Tribunal in terms of section 149 of the National Water Act, 1998
Water Tribunal Decision (22 May 2019)
- Appellants’ appeal of the water tribunal judgment in terms of section 149 of the National Water Act
- Atha-Atha Ventures’ notice of opposition (12 July 2019)
- Director General of the Department of Water and Sanitation (First Respondent) Notice of Intention to Oppose (19 July 2019)
- Amici Applications
- Joint application by civil society organisations
- Notice of Motion Founding Affidavit – First Applicant Amicus Curiae
- Second Applicant Amicus Curiae Supporting – Confirmatory Affidavit
- Third Applicant Amicus Curiae Supporting – Confirmatory Affidavit
- Fourth Applicant Amicus Curiae Supporting – Confirmatory Affidavit
- Fifth Applicant Amicus Curiae Supporting – Confirmatory Affidavit
- Sixth Applicant Amicus Curiae Supporting – Confirmatory Affidavit
- Amicus Application of the South African Human Rights Defenders Network (26 November 2020)
- Joint application by civil society organisations
- Heads of Argument
- Appellants heads of argument, Practice Note and updated practice note
- Appellants rebuttal affidavit and heads
- CER rebuttal affidavit
- CER replying affidavit
- Affidavit of Atha-Africa in response to CER’s Reply (28 September 2020)
- Appellants’ Rebuttal Heads of Argument and Atha-Africa Ventures’ Supplementary Heads of Argument
- Atha-Africa Ventures’ Heads of Argument and Practice Note (combined) and Practice Note
- Director- General in the Department of Water and Sanitation (First Respondent) Heads of Argument (14 August 2020)
Court order to strike out (14 November 2022)
Judicial review of the decision by the Department of Water and Sanitation to grant a water use licence in terms of the National Water Act, 1998
- Notice of Motion, Founding Affidavit and Supplementary affidavit of Yolan Friedman (25 November 2019)
- Third Respondent’s Notice of Intention to Oppose (5 December 2019)
- Notice of Motion and Founding Affidavit of The Voice to intervene (19 October 2020)
Judicial review of the decisions by the Minister of Mineral Resources and the Minister of Environmental Affairs to give Atha-Africa-Ventures (Pty) Ltd permission to mine in a protected environment in terms of the National Environmental Management: Protected Areas Act, 2003
On 24 July 2017, the applicants applied to court for an order setting aside the decisions of the Minister of Mineral Resources and the Minister of Environmental Affairs to give Atha-Africa Ventures (Pty) Ltd permission to mine in the Mabola Protected Environment in terms of section 48(1)(b) of the National Environmental Management: Protected Areas Act, 2003. The review application was combined with an application for an interdict, in terms of which Atha-Africa Ventures (Pty) Ltd would be prevented from commencing mining operations pending the outcome of the review application.
- Notice of motion and founding affidavit (Parts 1 and 2), annexures and confirmatory affidavits
- Atha Africa Ventures’ notice of intention to oppose
- The Minister of Environmental Affairs and Minister of Mineral Resources notice of intention to oppose
- Authority to Act
- The Applicants’ Rule 16A Notice
- Filing Notice of Minister’s record of proceedings
- Applicants’ supplementary founding affidavit and annexures SP1, SP2, SP3, SP4, SP5, SP6, SP7, SP8, SP9, TTN6(2), TTN7(2), TTN9(2), TTN10(2), TTN11(2), TTN12(2) and TTN13(2) and SP10
- Further affidavits made submitted by the applicants:
- Filing Notice of Applicants’ record of proceedings in terms of Rule 53(3)
- Atha Africa Ventures’ answering affidavit
- State respondents’ answering affidavit and annexures
- Applicants’ replying affidavit to Atha Africa Ventures’ answering affidavit
- Applicants’ replying affidavit to the State respondents’ answering affidavit
- Amendment of applicants’ notice of motion
- Further affidavits submitted by the applicants
- Notice of set down
- Applicants’ heads of argument (15 June 2018)
- Atha-Africa Ventures’ heads of argument
- The State’s Heads of Argument
- Joint Practice Note
- Joint Chronology
- State’s application for postponement 15 October 2018
- Applicants’ Notice of Opposition to postponement application
- Applicant’s Answering Affidavits, with Annexures
- Affidavit by the MEC explaining his decision to publish the notice of his intention to exclude an area as part of the Mabola Protected Environment on Friday 12 October 2018 and the annexure to the MEC’s affidavit
- The applicants’ answering affidavit
- Applicants’ notes for oral argument
Judgment of the High Court (8 November 2018)
- Atha-Africa Ventures’ application for leave to appeal high court judgment
- The State parties’ application for leave to appeal and application for condonation
- The State parties’withdrawal of their application for leave to appeal
- High Court order in Atha-Africa Ventures’ application for leave to appeal
- Atha-Africa Ventures’ petition to the Supreme Court of Appeal
- The civil society coalition’s answering affidavits to Atha-Africa Ventures’ petition to the Supreme Court of Appeal
- Supreme Court of Appeal Order in Atha-Africa Ventures’ petition for leave to appeal
- Atha-Africa Ventures’ application to the President of the Supreme Court of Appeal
- The civil society coalition’s answering affidavit to Atha-Africa Ventures’ application to the President of the Supreme Court of Appeal.
- Atha-Africa Ventures’ replying affidavit in the application to the President of the Supreme Court of Appeal.
Order of the Supreme Court of Appeal (9 July 2019)
- Atha-Africa Ventures’ application to the Constitutional Court (26 July 2019)
- The civil society coalition (First to Eighth Respondent’s) Notice to Oppose (12 August 2019)
- Answering Affidavit of Catherine Horsfield (12 August 2019)
- Atha-Africa Ventures’ Replying affidavit (26 August 2019)
Order of the Constitutional Court dismissing Atha-Africa Ventures’ application for leave to appeal (6 November 2019)
Judicial review of the decisions by the Gert Sibande District Joint Municipal Planning Tribunal and the Dr Pixley Ka Isaka Seme Local Municipality: Municipal Appeal Authority to approve Atha’s land use application
Atha-Africa Ventures (Pty) Ltd (Atha) applied to change the land use of Portion 1 of the Farm Yzermyn 96 HT, being the intended location of the surface infrastructure of the proposed mine. The stated purpose of the application is to change the land use of the property in order that such may be used for mining and ancillary purposes. The CER, on behalf of MEJCON-SA, groundWork, Earthlife, BirdLife-SA, EWT, FSE, AWARD and the Bench Marks Foundation, lodged an objection to the application in May 2018. The Gert Sibande Municipal Planning Tribunal approved the application in April 2019, and the CER has lodged an appeal of that decision.
- Objection on behalf of a coalition of eight civil society and community non-profit
organisations (30 May 2018)- Annexure A
- Annexure B
- Annexure C
- Annexures D1, D2 and D3
- Annexure E
- Response to the coalition’s objection, and other objections to and comments on the application, by the Practice Group, on behalf of Atha (27 June 2018)
- Reply by the coalition to the Practice Group’s letter (16 July 2018)
Decision of the Pixley Ka Isaka Seme Municipal Planning Tribunal (30 November 2018)
- Notice of Appeal of Pixley Ka Isaka Seme Municipal Planning Tribunal decision by the Practice Group on behalf of Atha (8 January 2019)
- Coalition’s Petition to Intervene in the Practice Group’s Appeal (29 January 2019) and Annexures:
- Letter from the Practice Group to the Dr Pixley Ka Isaka Seme Local Municipality (30 January 2019)
- Letter from the Coalition to the Dr Pixley Ka Isaka Seme Local Municipality (15 March 2019)
Decision of the Gert Sibande District Municipality Municipal Planning Tribunal (29 April 2019)
- Letter from the Coalition to the Local and District Municipalities (2 July 2019) and its Annexures
- Notice of Appeal against the decision of the Gert Sibande Municipal Planning Tribunal by Coalition (3 July 2019)
- Grounds of Appeal (3 July 2019)
- Annexure A to Appeal (see Objection and Annexures above dated 30 May 2018)
- The Practice Group’s Notice to Oppose the Coalition’s appeal (23 July 2019)
- Coalition’s Supplementary Notice of Appeal against the decision of the Gert Sibande Municipal Planning Tribunal (31 July 2019) (and its attached Annexure B)
- Letter from the Dr Pixley Ka Isaka Seme Local Municipality to the Coalition (25 July 2019)
- Notice by Municipal Appeal Authority regarding the hearing of the appeal (2 October 2019)
- Appellant’s Submissions in support of the Appeal (23 October 2019) and Annexures A and B.
- Grounds of Appeal (3 July 2019)
- Founding Affidavit of the Chairperson of MEJCON-SA:
- Confirmatory affidavit of John Capel of Bench Marks Foundation
- Confirmatory affidavit of Yolan Friedmann of the Endangered Wildlife Trust
- First, Second and Third Respondents’ notices to oppose the application
- Municipal Appeal Authority appeal decision (27 November 2019)
- Intervention Application of The Voice (22 October 2020)
Judicial Review of the Mpumalanga MEC for Environment’s decision to exclude four properties from Mabola: 2018 Objection to exclusion
On 12 October 2018, the MEC for Agriculture, Rural Development, Land and Environmental Affairs published notice of his intention to exclude certain properties from the Mabola Protected Environment. In the notice, he invited comments from members of the public on his intention to exclude certain properties from the Mabola Protected Environment. The CER, on behalf of MEJCON-SA, groundWork, Earthlife, BirdLife-SA, EWT, FSE, AWARD and the Bench Marks Foundation submitted an objection to the proposed exclusion of the stated properties from the Mabola Protected Environment.
The MEC later withdrew this notice on 25 January 2019. However, on 9 August 2019, the MEC published another notice of his intention to exclude the same properties in the Mabola Protected Environment and invited public comments. The CER, on behalf of the above-mentioned civil society organisations submitted its objection to the proposed exclusion on 8 October 2019.
On 15 January 2021 the MEC excluded four properties from Mabola to allow for mining activities to occur. The coalition of the above-mentioned civil society organisations then instituted a judicial review application in the Mbombela High Court seeking to have the MEC’s decision reviewed and set aside.
- Notice of intention to exclude stated properties from the Mabola Protected Environment dated 12 October 2018
- Objection and Annexures (A, B, C, D, E, F and G) dated 11 December 2018
- Withdrawal of the notice of intention to withdraw stated properties from the Mabola Protected Environment dated 25 January 2019
- Notice of Exclusion: On 15 January 2021, the MEC published the exclusion of the properties from the Mabola Protected Environment.
2019 Notice of the MEC’s intention to exclude certain properties from the Mabola Protected Environment
- Notice of intention to exclude an area as part of an existing Mabola Protected Environment in terms of the National Environmental Management: Protected Areas Act 57 of 2003 dated 9 August 2019
- Objection dated 8 October 2019 on behalf of the Mining and Environmental Justice Community Network of South Africa, groundWork, Earthlife Africa Johannesburg, the Association for Water and Rural Development (AWARD), Bench Marks Foundation, the Endangered Wildlife Trust, the Federation for a Sustainable Environment and Birdlife South Africa as represented by the Centre for Environmental Rights NPC and Annexures:
Judicial Review of the Mpumalanga MEC for Environment’s decision to exclude four properties from Mabola: 2021 Judicial Review Application
Notices of intention to oppose:
- Second Respondent’s Answering Affidavit
- Applicants’ Replying Affidavit
- CER Submissions to JP Legodi on the Right to Practice as a Law Clinic
- Notice of Application in terms of Rule 6(15)
- Notice of Removal from the Roll (29 09 2022)
Notices of set down:
Heads of Argument and Practice Notes:
Interdict applications
The applicants requested the Court to interdict Atha Africa Ventures (Pty) Ltd from commencing mining operations pending the outcome of their appeal against the decision of the Mpumalanga Department of Agriculture, Rural Development, Land and Environmental Affairs to grant Atha Africa Ventures (Pty) Ltd an environmental authorisation for its proposed coal mining operation in the Mabola Protected Environment and until application has been made and authorisation has been granted in terms of the Spatial Planning and Land Use Management Act, 2013 for a change of land use in respect of the properties subject to Atha Africa Ventures (Pty) Ltd mining right. A court order was granted by agreement between the parties.
2017 Interdict Application Court proceedings
- Notice of motion (20 June 2017)
- Founding affidavit
- Answering affidavit and annexures AA1-AA5 and AA6-AA16
- Replying affidavit
- Court order (by agreement)
2021 Urgent Interdict Application against Uthaka Energy (Pty) Ltd
- Notice of Motion and Founding Affidavit (5 March 2021)
- First Respondent’s Notice of Intention to Oppose and Rule 35(12) Notice
- Twelfth Respondent (The Voice) Notice to Oppose
- First Respondent’s Answering Affidavit and List of Annexures to the Answering Affidavit
- Twelfth Respondent (The Voice) Answering Affidavit
- Applicant’s Replying Affidavit and annexures RA1 Notice of allocation, RA2 Extract of EA and RA3 Rule 30A notice
- Applicant’s Court Directive Compliance Affidavit (Nabeelah Mia)
- Certificate of urgency
Heads of Argument and Practice Notes:
- First Respondent’s Practice Note
- First Respondent’s Heads of Argument
- Twelfth Respondent’s Heads of Argument
- Twelfth Respondent’s Practice Note
Judgment:
2021 Urgent Interdict Application by The Voice against CER
- Notice of Motion, Founding Affidavit of The Voice and Annexures (4 March 2021)
- CER’s Notice of Intention to Oppose (5 March 2021) and Answering Affidavit
- The Voice – Notice of Withdrawal of Application