20 November 2018
High Court of the Republic of South Africa, KwaZulu-Natal Division, Pietermaritzburg
Case No. 11488/17P
Date: 20 November 2018
Judge: Seegobin J
In this matter, the Global Environmental Trust, Mfolozi Community Environmental Justice Organisation and Mr Sabelo Dladla (applicants) applied to Court for an interdict restraining Tendele Coal Mining (Pty) Ltd (Tendele) from continuing coal mining operations on certain properties situated near the border of the Hluhluwe-Imfolozi Nature Reserve in KwaZulu-Natal Province. The applicants argued that Tendele’s mining operations on those portions of land is illegal on the basis that had not obtained environmental authorisation in terms of the National Environmental Management Act, 1998 (NEMA) for conducting listed activities on the site; a waste management licence in terms of the National Environmental Management: Waste Act, 2008 for managing waste on the site; and no written approval in terms of the KwaZulu-Natal Heritage Act, 2008 to damage, alter, exhume or remove any traditional graves from their original position; and did not have land use rights to conduct mining on those portions of land.
The Court however found for Tendele. It held that Tendele did not require environmental authorisation as its environmental management programme (EMPR) approved in terms of the Mineral and Petroleum Resources Development Act, 2002 (MPRDA) is deemed under the circumstances to be environmental authorisation. It furthermore held that no municipal consent was required for mining operations to be conducted on the relevant portions of land as there were no town planning scheme or land use scheme in place at the time that mining commenced requiring such consent. the Court also found that the applicants did not make out in its papers a reasonable apprehension that Tendele will continue to relocate or exhume traditional graves without the appropriate statutory requirements (even though it had done so in the past). Lastly, it was found that Tendele did not require a waste management licence under the circumstances.
The application was dismissed with costs. The Court did not apply section 32(2) of NEMA or the principle established in the Trustees for the time being of the Biowatch Trust and others v Registrar, Genetic Resources and others.
The High Court has granted the applicants leave to appeal to the Supreme Court of Appeal and for the Centre for Environmental Rights to be admitted as amicus curiae in proceedings in that court. Download the judgment on the application for leave to appeal.