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[2021] ZAGPPHC 195
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Mining and Environmental Justice Community Network of South Africa and Others v Uthaka Energy (Pty) Ltd (11761/2021) [2021] ZAGPPHC 195 (30 March 2021)
HIGH
COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO: 11761/2021
REPORTABLE:NO
OF
INTEREST TO OTHER JUDGES:NO
REVISED
DATE
30
March 2021
In
the matter between:
MINING AND
ENVIRONMENTAL JUSTICE
COMMUNITY
NETWORK OF SOUTH AFRICA
First
Applicant
GROUNDWORK
Second
Applicant
BIRDLIFE
SOUTH
AFRICA
Third
Applicant
ENDANGERED
WILDLIFE
TRUST
Fourth
Applicant
FEDERATION
FOR A SUSTAINABLE ENVIRONMENT
Fifth
Applicant
ASSOCIATION
FOR WATER AND RURAL DEVELOPMENT
Sixth
Applicant
THE
BENCH MARKS
FOUNDATION
Seventh
Applicant
and
UTHAKA
ENERGY (PTY)
First
Respondent
MEC FOR AGRICULTURE,
RURAL DEVELOPMEMENT,
LAND
AND ENVIRONMENTAL AFFAIRS, MPUMALANGA
Second
Respondent
THE MINISTER OF
ENVIRONMENT, FORESTRY
AND
FISHERIES
Third
Respondent
MINISTER
OF MINERAL RESOURCES AND ENERGY
Fourth
Respondent
ACTING CHIEF
DEIRECTOR: ENVIRONMENTAL AFFAIRS,
DEPARTMENTOF
AGRICULTURE, RURAL DEVELOPMENT,
LAND
AND ENVIRONMENTAL AFFAIRS, MPUMALANGA
Sixth
Respodent
GERT
SIBANDE DISTRICT MUNICIPALITY
Seventh
Respondent
DR
PIXLEY KA ISAKA SEME LOCAL MUNICIPALITY
Eighth
Respondent
THE
WATER
TRIBUNAL
Ninth
Respondent
ESTATE
LATE PIERRE WILLIAM BRUWER UYS
Tenth
Repondent
OCCUPIERS OF PORTION 1
OF THE FARM YZERMYN
96
HT
Eleventh
Respondent
THE
VOICE COMMUNITY REPRESENTATION COUNCIL
Twelfth
Respondent
THE MABOLA PROTECTED
ENVIRONEMENT
LANDOWNERS
ASSOCIATION
Thirteenth
Respondent
J
U D G M E N T
This
urgent application was heard in open court and otherwise disposed of
in the terms of the Directives of the Judge President
of this
Division. The judgment and order are accordingly published and
distributed electronically.
DAVIS,
J
[1]
Introduction
1.1
This
is an urgent application whereby, as an interim measure, the
applicants seek to prevent the commencement of mining activities
on
properties which previously fell within the Mabola Protected
Environment (the “MPE”).
1.2
Prior
to the hearing of this application, the Acting Deputy Judge President
directed that the parties should attempt to minimize
their papers to
be filed in this urgent application, so as to not exceed 500 pages.
The seven applicants’ founding
papers, together with annexures
and confirmatory affidavits comprised 279 pages and their replying
papers some 32 pages.
The twelfth respondent, The Voice
Community Representative Council (“The Voice”), filed an
answering affidavit of 54
pages. In stark contrast, the first
respondent, Uthaka Energy (Pty) Ltd (“Uthaka”) filed
papers which, together
with annexures far exceeded 5800 pages and
that is not even taking into account the further documents insisted
on in terms of Rule
35 (12). In addition to heads of arguments
uploaded on Caselines, counsel for Uthaka at the hearing, handed up
bundles and
bundles of further documents, without any attempt at
complying with this courts’ directives regarding the electronic
filing
and uploading of documents on the Caselines platform.
1.3
The
result of the above, was that it was not possible to render a
judgment on 23 March 2021, being the day before the mining activities
were scheduled to commence. An order was handed down on 23
March 2021 with the indication that the reasons for that order
would
be contained in this judgment, which is handed down on an urgent
basis on 30 March 2021, that is 13 days after the hearing.
[2]
The
parties
2.1
The
applicants are Mining And Environmental Justice Community Network of
South Africa ("MEJCON"), G
roundwork,
Birdlife South Africa, Endangered Wildlife Trust, Federation for a
Sustainable Environment, Association for Water And
Rural Development
and The Bench Marks Foundation. They have previously been
described as a range of non-governmental, non-profit
community,
environmental and human rights organisations.
2.2
The
respondents are Uthaka,
MEC
for Agriculture, Rural Development, Land and Environmental Affairs,
Mpumalanga (the "MEC"), the Minister of Environment,
Forestry and Fisheries, the Minister of Mineral Resources and Energy,
the Minister of Human Settlements, Water and Sanitaiton,
the Acting
Chief Director: Environmental Affairs, Department of Agriculture,
Rural Development, Land and Environmental Affairs,
Mpumalanga, Gert
Sibande District Municipality, Dr Pixley Ka Isaka Seme Local
Municipality,The Water Tribunal, Estate Late Pierre
William Bruwer
Uys, Occupiers of Portion 1 of The Farm Yzermyn 96 HT, The Voice and
The Mabola Protected Environment Landowners
Association.
2.3
Only
Uthaka and The Voice opposed the application.
[3]
The
existing litigation and legal restrictions
3.1
The
areas immediately adjacent to the property on which Uthaka proposes
to commence mining activities, fall within the (the MPE).
These
areas comprise of wetlands and other ecosensitive areas.
3.2
The
MPE has been declared a protected environment in terms of the
provisions of the National Environmental Management: Protected
Areas
Act, 57 of 2003 (“NEMPAA”), in particular, section 28
thereof, on 22 January 2014 by the current MEC’s
predecessor.
This was done after an extensive consultative process (in which
Uthaka, previously known as Atha-Africa, had
partaken) and followed
upon a publication of a national list of ecosystems that are
threatened and in need of protection.
This was done on 9
December 2011 in terms of section 57 of the National Environmental
Management Biodiversity Act, 10 of 2004 (“NEMBA”)
and
included the area comprising the MPE.
3.3
On 20
August 2016 the then Minister of Environmental Affairs and on 21
November 2016 the then Minister of Mineral Resources granted
Uthaka
permission to mine within the MPE. The proposed mine is known
as the “Yzerfontein Underground Coal Mine”.
The
surface infrastructure of the proposed mine then fell in the MPE and
the proposed underground footprint extended into the MPE.
The
mining proposal consists of utilizing a mining method which comprises
of the removal of large areas of coal containing ore
and leaving in
place underground “pillars” of ore to support the “roof”
of the underground mine.
The mining activities would also
include the extraction, crushing, screening and stockpiling of ore
and coal and the off-site transportation
thereof. The estimated
life of the mine is 15 years.
3.4
The
mine would create employment opportunities for the surrounding
community, both during the construction and operational phases
of the
mine. I shall deal with this aspect hereinlater when dealing
with The Voice’s opposition to the urgent application.
3.5
The
decisions of the Ministers referred to in paragraph 3.3 above whereby
permission had been granted to Uthaka to mine in the MPE,
had been
taken on review by the applicants. This court, on 8 November
2018, set the Ministers’ decisions aside in a
judgment
subsequently reported as
Mining
and Environmental Justice Community Network of South Africa and
Others v Minister of Environmental Affairs and Others
[2019] 1 All SA 491
(GP) (8 November 2018) (the “
MEJCON
– judgment”).
3.6
The
order granted in the abovementioned matter reads as follows:
“
1.
The decision of the first respondent on 20 August 2016 to grant the
third respondent
written permission to conduct commercial mining in
the Mabola Protected Environment in terms of section 48(1)(b) of the
National
Environmental Management: Protected Area Act 57 of 2003
(“NEMPAA”) is reviewed and set aside.
2.
The decision of the second respondent on 21 November 2016 to grant
the third
respondent written permission to conduct commercial mining
in the Mabola Protected Environment in terms of section 48(1)(b) of
NEMPAA is reviewed and set aside.
3.
The third respondent’s application for written permission to
conduct commercial
mining in the Mabola Protected Environment in
terms of section 48(1)(b) of NEMPAA is remitted to the first and
second respondents
for reconsideration.
4.
In reconsidering the third respondent’s application for written
permissions
to conduct commercial mining in the Mabola Protected
Environment in terms of section 48(1)(b) of NEMPAA, the first and
second respondents
are directed to consider all relevant
considerations and:
4.1
to comply with
section 2
and
4
of the
Promotion of Administrative
Justice Act 3 of 2000
;
4.2
to take into account the interests of local communities and the
environmental principles
referred to in section 2 of the National
Environmental Management Act 107 of 1998 (“NEMA”);
4.3
to defer any decision in terms of section 48(1)(b) of NEMPAA until
after the decision of:
4.3.1 the applicants’
statutory appeal to the Director General: Department of Mineral
Resources in terms of the
Mineral and Petroleum Resources Development
Act 28 of 2002
against the approval of the third respondent’s
environmental management programme; and
4.3.2 the applicants’
statutory appeal to the Water Tribunal in term of the
National Water
Act 36 of 1998
against the decision to issue a water use licence to
the third respondent;
4.4
not to consider the granting of permission to conduct commercial
mining in the Mabola Protected
Environmental in terms of
section
48(1)(b)
of NEMPAA until a management plan for the MPE has been
approved by the fifth respondent in terms of
section 39(2)
of NEMPAA
and to consider the contents thereof.
5.
In the event that, prior to the completion of the reconsideration
contemplated
in paragraphs 3 and 4, the fifth respondent decides in
terms of
section 29(b)
of the
National Environmental Management:
Protected Areas Act 57
of 2003, to exclude the farms referred to in
Provincial Notice 127 of 2018 (“Gazette notice”), from
the Mabola Protected
Environment, any party may apply to Court on the
same papers, duly supplemented, on notice to the other parties, for
an order varying
paragraphs 3 and 4 or granting such alternative,
further or interim relief as may be just and equitable in the
circumstances.
6.
The first, second and fifth respondents are directed to pay the
applicant’s
costs of this application, jointly and severally on
the attorney and client scale, the one paying the other to be
absolved, such
costs to include the costs of two Counsel
”
.
3.7
On 11
February 2019, Uthaka’s application for leave to appeal the
above order was refused with costs. On 23 April 2019
the
Supreme Court of Appeal dismissed Uthaka’s application for
leave to appeal, with costs. On 9 July 2019 the President
of
the Supreme Court of Appeal dismissed Uthaka’s application for
reconsideration of the previous dismissal and on 6 November
2019, the
Constitutional Court dismissed Uthaka’s application for leave
to appeal to that court, also with costs.
3.8
The
said ministers have, to date, not reconsidered Uthaka’s
applications for permission to conduct commercial mining in the
MPE.
Instead, the MEC has excluded the four (of six) properties on which
the proposed mine will be situated and which previously
formed part
of the MPE from the MPE. This was done by way of a publication
in the Provincial Gazette of 15 January 2021 in
terms of
section
29(b)
of NEMPAA. The properties are Portion 1 of Kromhoek 93HT,
Remainder of Kromhoek 93 HT, Goedgevonden 95HT and Remainder of
Yzerfontein 96 HT, comprising in total some 2 750 ha.
3.9
In
the meantime a number of reviews and internal appeal processes have
been lodged and are still pending against various decisions
relating
to different aspects of the proposed mining operations in terms of
which Uthaka has been given permission to proceed with
its mining
operations. These are following:
3.9.1
The
applicants' appeal in this division under case number A155/19 in
terms of
section 149
of the
National Water Act 36 of 1998
;
3.9.2
The
applicants' judicial review in this division under case number
86261/19 of the water use licence;
3.9.3
The
applicants' internal statutory appeal against the approval of
Uthaka’s Environmental Management Programme;
3.9.4
The
applicants' judicial review of the environmental authorisation (in
the Mpumalanga Division of the High Court, Mbombela under
case number
1390/18);
3.9.5
The
applicants' judicial review of Uthaka’s mining right (in this
division under case number 73278/15);
3.9.6
The
applicants' judicial review of the dicision by the Gert Sibande
District Joint Municipal Planning Tribunal to approve the rezoning
of
Portion 1 of the farm Yzermyn 96 HT from agriculture to mining, and
the Municipal Appeal Authority of the Dr Pixley Ka Isaka
Seme Local
Municapality’s confirmation of the approval of that decision
(in the Mpumalanga Division of the High Court, Middleburg
under case
number 1344/20).
3.10
It is
in these circumstances that Uthaka proposed commencing mining
operations on 24 March 2021. The applicants argued that
Uthaka
should be interdicted and restrained from doing so until all the
above processes have been finalized. In addition,
the
applicants claim that Uthaka should be so interdicted until it has
obtained a valid mining right in respect of which the period
of
commencement has been duly extended, it has exhausted the statutory
procedures in respect of the owner of portion 1 of Yzerfontein
96 HT
in terms of
section 96
of the
Mineral and Petroleum Resources
Development Act, 28 of 2002
and has fulfilled all the conditions laid
down in statutory authorizations, including The Water Tribunal.
Most important,
the applicants intend taking the MEC’s
exclusion of the properties referred to in paragraph 3.8 above from
the MPE, on review.
3.11
The
applicants do not need an interdict in order to enforce their rights
of review, but claim that there is a reasonable apprehension
of
irreparable harm, should Uthaka not be restrained from mining in the
interim.
[4]
Jurisdiction
and lis pendens
4.1
Uthaka
has objected to the jurisdiction of this court and has alleged that
the subject matter of this application is already pending
before
another court.
4.2
The
argument pertaining to jurisdiction is (to quote from the heads of
argument submitted on behalf of Uthaka) “…
that
the applicants are in the wrong court and that this application
should have been launched either in the Gauteng Local Division,
Johannesburg or in the Mpumalanga Provincial Division, Mbombela …
”.
4.3
The
reasons for the above are that Uthaka is “located” in
Johannesburg and that Portion 1 of the Yzermyn farm is located
within
the area of jurisdiction of the Mpumalanga High Court.
4.4
The
argument against the choice of the two divisions of the Gauteng High
Court does not have substance: the two divisions exercise
concurrent
jurisdiction. The argument based on the judgment in
In
re: Nedbank Ltd v Thobejane and related matters
2019 (1) SA 594
(GP) is equally without substance: the court in that
matter found it inappropriate if a choice of court prejudices an
indigent
defendant. Uthaka can hardly claim such a
classification for itself.
4.5
In
the order referred to in paragraph 3.6 above, this court already
envisaged the possibility of a situation like the present arising,
namely where the MEC may excise the properties in question from the
MPE without the relevant Ministers having performed any
“reconsideration”
function. In such a case, the
applicants were already granted leave to approach this court.
This leave, by itself,
entitled the approach (or “return”)
to the court which had jurisdiction at the time. The fact that
it has been
done by the applicants under a new case number, does not
detract from this fact.
4.6
Uthaka
has not argued that this court does not have jurisdiction, but that
another court “should” have been “preferred”.
I find that the previous order is a sufficient
ratio
jurisdictionis
(reason for exercising jurisdiction) and that this court, once the
occurrence foreshadowed in its previous order occurred, remained
seized with the matter and was therefore the court of choice.
4.7
Insofar
as there may be litigation pending in other divisions, the subject
matter and the parties involved are not identical.
The
objection of
lis
pendens
can therefore also not succeed. In any event, in respect of a
plea of
lis
pendens
,
a court has a discretion and the extent of previous litigation in
this court, is clearly a weighty factor in exercising the discretion
in favour of the applicants, which I hereby do. I find no
prejudice for any of the respondents in exercising the discretion
in
this fashion and none has been claimed by any of them.
4.8
In
conclusion, the objections against this court exercising
jurisdiction, are rejected.
[5]
The
requirements for an interim interdict
5.1
These
requirements, often referred to as “trite” appear in
The
Law of South Africa
(LAWSA), Vol 11 at [411] and in
The
Law and Practice of Interdicts
,
Prest, Juta & Co 1996 with reference to the well-known case of
Setlogelo
v Setlogelo
1914 AD 221
at 227.
5.2
For
more than a century our courts have held that, for an applicant to
obtain a final interdict, such applicant must show a clear
right, an
injury committed or reasonably apprehended and no alternative
remedy. If the application is for an interim interdict,
the
further requirements are added: the right need not be clear,
provided that it is prima facie established, even if open
to some
doubt and the balance of convenience must favour the relief claimed.
See, in addition to the
Setlogelo
-judgment,
Webster
v Mitchell
1948 (1) SA 1186
(W) at 1189 as restated in, inter alia,
Knox
D’Arcy v Jamieson
1995 (2) SA 579
(W) at 592 H – 593 B.
5.3
A
further important aspect to be considered in respect of an interim
interdict is that the relief sought must be concerned with
future
events. See:
National
Treasury v Opposition to Urban Tolling Alliance and Others
2012 (6) SA 223
(CC).
[6]
The
apprehension of irreparable harm in the context of a protected
environment
6.1
The
issue of possible foreseeable irreparable harm, should an interim
interdict not be granted, is, in the context of this case,
a
convenient starting point as most of the other requirements for such
an interdict will be illustrated or canvassed by consideration
of
this issue.
6.2
Uthaka’s
stance in opposing the relief sought is, in a nutshell, this: it
maintains that it has obtained all the necessary
statutory
authorisations needed to commence mining operations and that, insofar
as its mining operations may cause environmental
disturbance, the
effect thereof will be mitigated by the rehabilitation plans and
other preventative measures in place.
6.3
In
addition, Uthaka lays claim to a utilitarian consideration, namely
the loss of profit and income and prevention of job-creation,
should
an interim order be granted. Although this claim is more
closely related to the question of balance of convenience,
as
justification for it, Uthaka relies heavily on the principles of
“sustainable development”, which again ties in
with the
issues of ecological damages and the protection of the environment.
6.4
Uthaka
repeatedly, in the extensive argument, referred to the fact that a
“cautionary approach” is neither applicable
nor
appropriate in the circumstances of this case.
6.5
In
terms of section 24 of the Constitution of the Republic of South
Africa 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.
6.6
The
legislation in question to give effect to the abovementioned
environmental provision contained in the Constitution, are the
National Environmental Management Act 107 of 1998 (“NEMA”),
the National Environmental Management: Biodiversity Act
10 of 2004
(“NEMBA”), the National Environmental Management:
Protected Areas Act 57 of 2003 (“NEMPAA”)
and the
National Water Act 36 of 1998 (“NWA”), as already
referred to in part above.
6.7
The
statutory framework created by the aforesaid legislation regulating
mining in a protected environment, has been set out comprehensively
in the
MEJCON
– judgment at paragraph [4] thereof and repetition thereof here
is unnecessary, save to highlight that, in terms of section
7(1) of
NEMPAA, regarding the management and development of protected
environments, in the event of conflict with any national,
provincial
or municipal laws, the provisions of NEMPAA shall prevail.
6.8
Should,
therefore, the applicants be successful in the review application of
the decision whereby the MEC excised four of the six
farms on which
the proposed mining is to take place from the MPE, Uthaka will be
back in the position it was after the
MECJON
– judgment and again be subject to the consequences thereof and
the restrictions imposed by the abovementioned legislation.
6.9
It is
therefore necessary to consider whether the applicants have a
reasonable prospect of success in that review application and,
whether, in view of such prospects, the commencement or continuation
of mining operations should be permitted, pending the finalization
of
such a review.
6.10
The
applicant’s grounds of review of the MEC’s decision are
multi-pronged. They have been formulated in the following
terms:
6.10.1
The
MEC’s decision is an attempt to circumvent section 48 of NEMPAA
and is reviewable in terms of section 6(2)(b)(e)(vi),
6(2)(f)(ii)(aa)of PAJA.
6.10.2
The
MEC’s decision is an attempt to circumvent the order of this
Court in the
MEJCON
– judgment and is reviewable in terms of section 6(2)(a)(iii),
6(2)(b)(e)(vi), 6(2)(e)(ii), 6(2)(f)(ii)(aa) and 6(2)(h) of
PAJA.
6.10.3
The
MEC’s decision failed to consider the legislative framework,
science and policy regarding the protection of the Mabola
Protected
Environment and is reviewable in terms of section 6(2)(e)(iii),
6(2)(f)(ii)(dd) and 6(2)(h) of PAJA.
6.10.4
The
MEC failed to consider the precautionary principle and the vulnerable
ecosystems principle and his decision is reviewable in
terms of
section 6(2)(b), 6(2)(e)(iii), 6(2)(f)(ii)(dd) and 6(2)(h) of PAJA.
6.10.5
The
MEC failed to wait for the approval and finalization of the Mabola
Protected Environment management plan and his decision is
reviewable
in terms of section 6(2)(b), 6(2)(b)(e)(vi), 6(2)(e)(iii) and 6
(2)(h) of PAJA.
6.10.6
The
MEC expressed public intention in respect of the Mabola Protected
Environment and his decision is reviewable in terms of section
6(2)(a)(iii), 6(2)(b)(e)(iii), 6(2)(e)(ii) and 6(2)(f)(ii)(aa) of
PAJA.
6.10.7
The
MEC failed to consider the impact of mining generally and to the
local community and his decision is reviewable in terms of
section
6(2)(b), 6(2)(e)(iii), 6(2)(f)(ii)(dd) and 6(2)(h) of PAJA.
6.10.8
The
MEC failed to take into account South Africa’s international
responsibilities relating to the environment and his decision
is
reviewable in terms of section 6(2)(b), 6(2)(e)(iii) and
6(2)(f)(ii)(dd) of PAJA.
6.11
In my
view, it is crucial to note that the MEC has not responded to the
abovementioned attack and neither has he, to date of hearing
of the
application, given any reasons for his decision.
6.12
NEMPAA
provides in section 3 thereof that “in fulfilling the rights
contained in section 24 of the Constitution, the State,
through the
organs of state implementing legislation applicable to protected
areas, must act as the trustee of protected areas
in the Republic”.
Although the principle of sustainable development finds application,
it is subject to more
scrutiny than otherwise if the area in which
the proposed development, in this case, underground coal mining, is
to take place,
is a protected environment. The MPE comprises of
wetlands and grasslands which, despite Uthaka’s above
contentions,
have largely been classified as “Irreplaceable
Critical Biodeversity Areas”. (See the
MEJCON
– judgment (above) at paragraph 5.4 and the sources referred to
in footnote 7 of that judgment). Any excision of property
previously falling within such a protected area, for purposes of
accommodating such mining, would therefore equally be subject
to such
scrutiny.
6.13
After
some 84 pages of dealing with various aspects of the disputes in
question (except for the issue of the MEC’s decision)
Uthaka’s
Senior Vice President, in Uthaka’s answering affidavit,
commenced dealing with the applicant’s allegations
regarding
the proposed review of the MEC’s decision. The proposed
grounds of review are not directly confronted but,
attacked in a
general fashion and by way of dealing with matters either extraneous
to the decision or not directly related to the
issue. In order
not to be unfair to Uthaka, the complete sum-total of the answer to
the proposed review of the MEC’s
decision is quoted here:
“
I note
that the Applicants have not yet launched an application for the
review of the decision of the MEC to exclude the four relevant
mining
properties from the Mabola Protected Environment. I
respectfully submit that an intention to bring a review application
does not establish any prima facie right for the purposes of an
interim interdict. Any of the proposed grounds of review
will
be addressed in due course if and when such a review application is
launched. There is in any event no merit in these
grounds of
review and the chickens of the Applicants are coming home to roost.
From the outset, Uthaka suspected that the
whole initiative to have
the Mabola Protected Environment declared, in the face of the
existing Prospecting Right of Uthaka at
the time, was simply a
stratagem by the local landowners as well as environmental
organisations to prevent coal-mining in the area.
This
suspicion has been confirmed. Firstly, despite being under a
statutory obligation to develop a management plan within
a year, the
management committee failed to do so. Secondly, immediately
after the declaration a media campaign was initiated
to falsely
propagate that the reason for the declaration was to protect the area
against coal-mining. This was done despite
the fact that to the
knowledge of all concerned, Portion 1 of the Farm Yzermyn was
expressly excluded from the declaration in order
to accommodate the
surface infrastructure for the underground mine which was, to the
knowledge of all concerned, already in the
planning stage. Thirdly,
I refer the Court to the Google Images, prepared by Charlaine
Baartjes, of which a copy is attached
as annexure ‘PT 26”
hereto. The first image, dated 19 May 2014, shows an undisputed
area of wetlands. The
second image, dated 18 June 2018, shows
how the wetlands and biodiversity was destroyed as a direct result of
agricultural development.
The land is question is situated
north of the mining area but the one field constitute the area of
56.79 ha and the other one some
14.5 ha. This is an
agricultural development of more than 70 ha and is furthermore a
development that is literally three
times larger than the 22.4 ha
required for the surface infrastructure of the mining projects
.
6.14
It
should come as no surprise that the generalisations in the
“counter-attack” contained in the above paragraph based
on a “stratagem”, have not been supported by evidence.
On the face of it, therefore, coupled with the absence
of reaction
from the MEC, I find that the proposed review application has such
sufficient prospects of success, that it cannot
be ignored or brushed
aside. In view of the fact that the actual decision on the
merits of the review application will fall
in the purview of another
court, it is prudent to refrain from expressing any further comment
in this regard, save to state that
the possibility of Uthaka being
back in the same position mentioned in paragraph 6.8 above, remain a
live one.
6.15
A
further consequence of Uthaka’s answer, is the concession that
a management plan for the MPE, as contemplated in paragraph
4.4 of
the
MEJCON
– order, has not yet been approved. The importance of
such a plan has been highlighted by the Supreme Court of Appeal
judgment in
Umfolozi
Sugar Planters Ltd v Isimangaliso Wetland Park Authority and Others
(873/2017)
[2018] ZASCA 144
(1October 2018).
6.16
The
existence of the pending processes mentioned in the applicant’s
notice of motion (some of which also formed the basis
of Uthaka’s
jurisdictional objections and
lis
pendens
arguments) have also been conceded by Uthaka. One of these, is
the issue of Uthaka’s water use licence. There
is
currently a special appeal pending in terms of section 149(1) of the
NWA against the appeal decision of the Water Tribunal whereby
a
decision has been granted in favour of Uthaka’s water use
licence. The applicants contend that this appeal suspends
the
decision while Uthaka contends that this is not the case, and
moreover, that the special appeal is not on the facts or the
merits,
but on a point of law only. Be that as it may, the view I take
of the present urgent application, is that I need
not resolve that
issue.
6.17
The
applicants further claim that mining should be suspended pending the
final determination of whether Uthaka has all the required
authorisations it claims it has. As the relief is only of an
interim nature, the applicants need only establish the right
they
assert on a
prima
facie
basis, “even if open to doubt”.
6.18
Apart
from the scrutiny mentioned in paragrpah 6.12 above, which would form
part of the review application of the MEC’s decision,
the
question is whether mining should be allowed “in the meantime”?
Uthaka repetitively labelled the applicant’s
concerns
“alarmist” and makes various submissions about run-off
slopes for rainwater in the areas surrounding the surface
activities
of the proposed mine and the fact that the upper of the underground
aquifers (where most of the contamination will occur)
is separated
from the lower aquifer by a layer of rock with alleged low
permeability. This, coupled with the mitigation and
rehabilitation programmes proposed by Uthaka, should allay any fears
of environmental damage, so Uthaka argues.
6.19
But
should one take the risk? Or, put differently, have the
applicants demonstrated a reasonable apprehension of a risk of
irreversible damage to the environment? On Uthaka’s own
(very extensive) papers, the envisaged rehabilitation is not
absolute. The contamination would, in its own words in its
answering affidavit be “manageable”. Its Vice
–
President stated that “
these
potential consequences and impacts are also evaluated to determine
the likelihood of any of them occurring and all of the
relevant
potential consequences and impacts, as identified, were assessed to
present
an
acceptable level of risk
.
This assessment was done on the basis of site-specific features and
characteristics
”.
(my emphasis)
6.20
Once
the existence of a risk had been conceded, the answer to what might
be an “acceptable risk” to a mining company,
would in all
probability not be the same for a trustee of a protected
environment. Adv Oosthuizen SC who appeared for
Uthaka
together with Adv Rust, urged the court not to take a “precautionary
approach”. Such an approach, in environmental
protection
disputes, is applicable “
where
due to unavailable scientific knowledge there is uncertainty as to
the future impact of the proposed development. Water
is a
precious commodity, it is a natural resource that must be protected
for the benefit of the present and future generations
”.
See:
Fuel
Retailers Association v Director: Environmental Management,
Mpumalanga
2007 (6) SA 4
(CC) at [98].
6.21
Uthaka
argues that, “
to
err on the side of caution thus means to insist on mitigation
measures despite uncertainty and not to veto development because
of
uncertainty
”.
However, in the
Fuel
Retailers
– case (above) the former chief justice, then Ngcobo J held as
follows at [102]: “
The
role of the courts is especially important in the context of the
protection of the environment and giving effect to the principle
of
sustainable development. The importance of the protection of
the environment cannot be gainsaid. Its protection
is vital to
the enjoyment of the other rights contained in the Bill of Rights;
indeed, it is vital to life itself. It must
therefore be
protected for the benefit of the present and future generations
”.
6.22
In my
view, in applying the above injunctions in respect of risk which may
be “manageable” or not, but has the potential
to impact
on a protected area, without absolute scientific assurance about the
extent of the risk or its “manageability”,
the duty of
the court is to err on the side of protection of possible harm and to
prevent the occurrence of harm which may be irreversible.
6.23
In
short, the present case demonstrates that, where there is, in the
context of a protected environment, a reasonable prospect that
the
excision of an area from such an environment may be reversed, the
risk of damage to such an environment should be avoided until
the
certainty as to the excision has been obtained.
[7]
Balance
of convenience
7.1
Even
though the approach of the court in this matter should be as
indicated above, the balance of convenience of the parties should
still be considered.
7.2
In
the context of this case, this means weighing up the inconvenience
which may be caused for Uthaka if the commencement of mining
operations, in respect of which it has already invested millions of
Rands, is yet again delayed for an indefinite period, against
the
environmental concerns referred to above.
7.3
A
factor which ties in with Uhtaka’s inconvenience, is the
contention that, should it not immediately commence mining
operations,
for which it has set out the various prospective steps in
a Gantt Chart, it is at risk of losing its mining licence. The
initial steps relating to the construction of the surface
infrastructure of the proposed mine, are to some extent,
“non-invasive”.
For this reason, the applicants
have, in reply, conceded that Uthaka may be permitted to commence
with the “innocuous”
part of the initial commencement of
mining operations, namely the pegging of the surface areas.
This should result in the
licence not lapsing and/or allowing Uhtaka
to obtain the necessary extensions for such commencement if needs
be. This permission
has been contained in the order.
7.4
The
other relevant “balance of convenience” to be considered
is that of the twelfth respondent, The Voice. It
represents the
local community situated within the Dr Pixley Ka Isaka Seme Local
Municipal District. The community consists
of some 87 611
people in 25 448 households. Only 44,2% of this population
is economically active. The community
is a poor one with 73,4%
of the households having a monthly income of less than R 3 500.00.
Should the mine become operational,
8464 new employment opportunities
might be created. Of these, 5 356 will be “direct”.
A number of
adjunct SMME’s will in all probability also become
established as a result of mining operations.
7.5
Clearly,
the mining operations would be beneficial to the community in an
economic sense. In a sense, this represents the
perpetual
tension between the consequences of human intervention in nature for
its own sake and the conservation of nature itself.
The
granting of an interdict would, however, only be temporary in
nature. If it lapses after the terms thereof have been
fulfilled or otherwise disposed of, it will only have resulted in a
delay of the mining operations. Whilst bearing in mind
that
such a delay will cause an extension of the period of hardship for
the community, their position has been, sad as it is, in
existence
for many years. The mine will also not immediately and in
miraculous fashion, transform the community and solve
or alleviate
all its problems. Although this court always views
circumstances of hardship with empathy, the reality of the
situation
is that, if the MEC’s decision is reviewed and set aside, the
mine will have to be established either elsewhere
or only in those
circumstances or on those conditions as the Ministers may determine
after the reconsideration contemplated in
the
MEJCON
– judgment The “convenience” of the
community, or rather the “inconvenience” in having
a
possible beneficial consequence to their wellbeing postponed, is a
factor which this court has taken into account when the order
referred to in paragraph 1 above has been granted as one of the
“interrelated” considerations. See
Erikson
Motors (welkom) Ltd v Protea Motors, Warrenton
1973 (3) SA 685
(A) at 691 D – E. These considerations or
“inconvenience” were, however, outweighed by the others
already
discussed. These considerations will again feature,
should any reconsideration by the Ministers, as referred to in the
MEJCON
– judgment, take place.
[8]
Conclusion
In conclusion, having weighed up all
of the above factors and the evidence produced by the parties, I find
that
-
This
court has jurisdiction to hear the matter;
-
The
matter merited a hearing on the urgent court roll;
-
The
applicants have shown, at least prima facie at this stage, that they
have a reasonable prospect of success in the pending matters
but, in
particular, in respect of the review of the MEC’s decision to
excise the properties in question from the MPE.
The appeals and
reviews do not appear to have been launched frivolously or
vexatiously and there appear to be serious review and
appeal issues
which need to be decided;
-
The
applicants do not have an alternate remedy available;
-
There
is a well-grounded apprehension of harm to the environment which does
appear to have the real prospect of being irreversible,
albeit that
the extent of the irreversibility may be in dispute;
-
The
allowing of the pegging of areas as contained in Uthaka’s Gantt
Chart should be allowed as an amelioration of some of
Uthaka’s
fears regarding the validity of their environmental authorization
required for the continued existence of their
mining right;
-
In
the exercise of my discretion and having considered the various
aspects pertaining to the balance of convenience of all concerned
parties, an interim interdict is justifiable;
-
In
the exercise of my discretion further, The Voice, having regard to
the impecunity of its constituents, should not be saddled
with a
costs burden. Save as aforesaid, I find no cogent reason why
costs should not otherwise follow the event.
[9]
The
order
As already indicated, the order had,
of necessity and due to the grounds of urgency stated in the
application, been granted last
week on 23 March 2021. For the
sake of good order and clarity, it is again repeated here:
1.
It
has been directed that this matter be heard on an urgent basis in
terms of rule 6(12).
2.
The
first respondent ("Uthaka") is interdicted and restrained
from conducting any mining activities and mining-related
operations
(including any activities preparatory, ancillary or incidental to
mining, including without limitation any fencing,
cutting or clearing
of vegetation, any establishment of roads, any contruction or
installation of buildings, infrastructure or
equipment and any
drilling, excavation, digging, removal of soil, coal, ore or any
mineral) ("mining activities") save
for the survey pegging
of the surface infrastructure boundary as contemplated as activity 1
in the first respondent’s Gantt
Chart, and the wetlands
demarcation pegging of the aproved plan, contemplated as activity 2
in the Gantt Chart, on the properties
listed in annexure 'A' to the
Applicants' Notice of Motion ("the properties") unless and
until, the following has taken
place -
2.1
The
final determination of the following reviews and appeals –
2.1.1
The
applicants' appeal in this division under case number A155/19 in
terms of
section 149
of the
National Water Act 36 of 1998
;
2.1.2
The
applicants' judicial review in this division under case number
86261/19 of the water use licence;
2.1.3
The
applicants' internal statutory appeal against the approval of
Uthaka’s Environmenatal Management Programme and any judicial
review proeedings instituted in respect of that appeal decision;
2.1.4
The
applicants' judicial review of the environmental authorisation (in
the Mpumalanga Division of the High Court, Mbombela under
case number
1390/18);
2.1.5
The
applicants' judicial review of Uthaka’s mining right (in this
division under case number 73278/15);
2.1.6
The
applicants' judicial review of the dicision by the Gert Sibande
District Joint Municipal Planning Tribunal to approve the rezoning
of
Portion 1 of the farm Yzermyn 96 HT from agriculture to mining, and
the Municipal Appeal Authority of the Dr Pixley Ka Isaka
Seme Local
Municapality’s confirmation of the approval of that decision
(in the Mpumalanga Division of the High Court, Middleburg
under case
number 1344/20); and
2.1.7
The
applicants' judicial review of the MEC’s decision to exclude
the properties from the Mabola Protected Environment, which
review
application must be instituted within 30 days after the MEC has
delivered his reasons for said decision;
2.1.8
The
reconsideration by the Ministers of Environmental Affairs and Mineral
Resources of Uthaka’s application for written permission
to
conduct mining in terms of
section 48(1)(b)
of NEMPAA, as ordered by
Davis J in his judgment under case number 50779/2017, should Uthaka
need or persist in seeking such permission.
2.2
The
grant of the following authorisations and permissions –
2.2.1
A
valid mining right, in respect of which the period for commencement
has been duly extended in terms of section 25(2)(b) of the
Mineral
and Petroleum Resources Development Act 28 of 2002 ("MPRDA");
2.2.2
The
exhaustion of the statutory procedures in terms of section 54 of the
MPRDA vis-à-vis the owner of portion 1 of Yzermyn
96 HT and
any occupier of that land; and
2.2.3
The
fulfillment of all relevant conditions laid down in statutory
authorisations, including those imposed by the Water Tribunal.
3.
The
first respondent is ordered to pay the costs of this application
including the costs of two counsel, such costs in respect of
the
applicants' instructing attorneys and senior counsel to be payable in
terms of section 32(3)(a) of the National Environmental
Managmement
Act 107 of 1998.
\
N DAVIS
Judge of the High Court
Gauteng Division, Pretoria
Date
of Hearing: 17 March 2021
Judgment
delivered: 30 March 2021
APPEARANCES:
For
the Applicant:
Adv T. J
Bruinders SC together with
Adv K Hardy
Attorney for the
Applicant:
Centre for Environmental Rights, Cape
Town.
c/o Gildenhuys Malatji
Attorneys, Pretoria
For the 1
st
Respondent:
Adv M.M Oosthuizen SC together with
Adv J
Rust
Attorney for the 1
st
Respondent:
Fasken Attorneys, Pretoria
For
the 12
th
Respondent:
Adv H van der Vyver
Attorney
for the 12
th
Respondent:
Ayoob Kaka Attorneys, Johannesburg