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Centre for Environmental Rights – Advancing Environmental Rights in South Africa

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Pollution & Climate Change

Promote environmental justice, ensure compliance, and strengthen civil society participation.

The proposed KiPower IPP

Trustees for the time being of the groundWork v Minister of Environmental Affairs and others

Challenge of the decision of the Department of Environmental Affairs to grant environmental authorisation

In this matter, groundWork applied to court for an order reviewing and setting aside the decision of the Department of Environmental Affairs (DEA) to grant environmental authorisation to Kuyasa Mining (Pty) Ltd (Kuyasa) for the proposed KiPower Coal-fired Power Station as well as the decision of the Minister of Environmental Affairs to dismiss its appeal against the decision of the DEA to grant environmental authorisation for that power station. groundWork is also asking the court to remit Kuyasa’s application for environmental authorisation to the DEA for reconsideration and for it specifically to consider the climate change impact of the application, the comment on a climate change impact assessment on interested and affected parties and any additional information the DEA may require to reach a decision.

Kuyasa initially opposed the application, but withdrew its notice of intention to oppose on 21 September 2017. On 19 October 2017, Kuyasa reinstated its opposition to groundWork’s application. On 1 November 2017, Kuyasa’s attorneys addressed a letter to the CER stating that Kuyasa now intends to amend its environmental authorisation and to conduct a climate change impact assessment in relation to its proposed coal-fired power station.

High Court application

Internal appeal to the Minister of Environmental Affairs against the decision of the Department of Environmental Affairs to grant environmental authorisation for the proposed KiPower Coal-fired Power Station

Appeal to the Water Tribunal against the decision of the Department of Water and Sanitation to issue a water use licence

In February 2017, the Department of Water and Sanitation (DWS) issued a water use licence (WUL) for water uses relating to the construction and operation of KiPower’s proposed coal-fired power station near Delmas in Mpumalanga Province. On 7 September 2017, the Centre for Environmental Rights, on behalf of groundWork, lodged an appeal against the decision with the Water Tribunal in terms of the National Water Act, 1998 (NWA). The following grounds of appeal have been raised in groundWork’s appeal:

  • water pollution from KiPower would violate the Constitution, the NWA and the National Environmental Management Act, 1998 (NEMA);
  •  the factors under section 27 of the NWA as applied to KiPower should have resulted in the DWS refusing to issue the WUL;
  • the DWS has failed in its duty as public trustee of South Africa’s water resources;
  • the decision to issue the WUL is not in line with the section 2 principles of NEMA, in particular the requirement for a risk averse and cautious approach and the polluter pays principle;
  • KiPower does not have a WUL for several activities that fall under section 21 of the NWA;
  • the WUL conditions are unreasonably vague and therefore unenforceable; and
  • the decision to issue the WUL constitutes unlawful administrative action in contravention of PAJA

Appeal documents