THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case no: 1052/2023
In the matter between :
KANGRA COAL ( PTY) LTD APPELLANT
and
THE TRUSTEES OF THE TIME BEING
OF THE CORNEELS GREYLING TRUST FIRST RESPONDENT
MOOIBANK BOERDERY (PTY) LTD SECOND RESPONDENT
THE MINISTER OF WATER AND SANITATION THIRD RESPONDENT
THE CHIEF DIRECTOR: WATER USE LICENSING
MANAGEMENT – DEPARTMENT OF WATER
AND SANITATION FOURTH RESPONDENT
Neutral citation: Kangra Coal ( Pty) Ltd v The Trustees of the Time Being of the
Corneels Greyling Trust and Others (1052/2023) [2025]
ZASCA 09 (06 February 2025)
Coram: MOCUMIE, HUGHES, WEINER and MOLEFE JJA and
CHILI AJA
Heard: 15 November 2024
Delivered: This judgment was handed down electronically by circulation to
the parties ’ legal representatives by email, publication on the Supreme Court of Appeal
2
website, and by release to SAFLII. The date and time for hand -down is deemed to b e
11h00 on 06 February 2025.
Summary: Appeals in terms of s 148(3) of the National Water Act 36 of 1998 (the
NWA) against water use licences (the WUL) – suspension of licence pursuant to
lodging of appeal – locus standi to interdict a mining company from undertaking any
water use pending upliftment of the suspension of the WUL by the Minister of Water
and Sanitation or the outcome of the appeal to the W ater Tribunal.
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ORDER
On appeal from: Gauteng Division of the High Court , Johannesburg (per Du Plessis
AJ), sitting as a court of first instance .
1 The appeal is upheld with costs including the costs of two counsel where so
employed.
2 The order of the high court is set aside and substituted with the following:
‘The application is dismissed with costs , including the costs of two counsel where so
employed .’
JUDGMENT
Mocumie JA ( Hughes, Weiner and Molefe JJA and Chili AJA concurring):
Intro duction
[1] This is an appeal against the judgment and order of the Gauteng Division of the
High Court , Johannesburg (high court), per Du Plessis AJ , with leave of that court . The
appeal revolves around whether the first and the second respondents, commercial
farmers in the vicinity of the Kusipongo Colliery can succe ssfully interdict the appellant,
Kangra Coal (Pty) Ltd (Kangra), a mining company, from continuing with its water use
licence (WUL) and mining activities pending an appeal against its wa ter use granted
by the fourth respondent, the Chief Director of the Department of Water and Sanitation
(the Chief Director ).
Factual background
[2] The factual background is briefly as follows. The appellant, Kangra , operates
an underground coal mine at the Kusipongo Colliery , some 50 kms west of Piet Retief,
Mpumalanga. I t applied to the Department of Water and Sanitation (the Department)
for a n integrated water use license (the WUL ) for associated infrastructure and
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underground mining at the Balgrathen A adit (the adit) ,1 which it uses to access the
Kusipongo coal seam (the mine ). The adit land used by Kangra is situated near the
properties owned by the first and second respondents (the respondents ). The
respondents objected to the application for the WUL , citing among other reasons that
they depend on the water from 24 (twenty -four) natural springs in the area to irrigate
and grow commercial crops, to rear the ir livestock (cattle and sheep) for commercial
and domestic purposes. They contended that the water use by Kangra will reduce the
water flow in the area , pollute the water resources and result in acid mine drainage
which will impact the quality of the water resources , so adds the respondents . In
addition, this was a threat t o the ground and surface resources on which they depend.
[3] Despite the objections by the respondents , on 25 October 2021, t he Chief
Director granted the WUL to Kangra . Dissatisfied with the decision of the Chief
Director, t he respondents appealed to the Water Tribunal (the Tribunal) on 12 July
2022 in terms of s 148( 3) of the National Water Act 36 of 1998 (the NWA).2 According
to the respondents, once they appealed, the effect of their appeal was to suspend the
decision to grant the WUL as provided f or in s 22(1) (b).3 Despite this position , Kangra
continued to exercise its rights under the WUL , with its water uses and mining
activities.
[4] On 14 December 2021,1 9 January 2022 and 13 April 2022 respectively, and in
terms of s 42 of the NWA, the respondents reque sted reasons from the Chief Director
for his decision to grant Kangra the WUL . However, the Chief Director did not respond
to the request made in respect of th e objections raised by the respondents against the
WUL application by Kangra .
[5] In the Tribunal, Kangra contended that the appeal was brought more than eight
months late and was thus void or invalid. The respondents applied for condonation for
1 An opening on the surface which serves as an entry to the mine .
2 Section 1 48(3) of the NWA provides:
‘(3) An appeal must be commenced within 30 days after -
(a) publication of the decision in the Gazette ;
(b) notice of the decision is sent to the appellant; or
(c) reasons for the decision are given, whichever occurs last. ’
3 Section 22(1) (b) of the NWA provides:
‘(1) A person may onl y use water -
…
(b) if the water use is authorised by a licence under this Act. ’
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the late filing of the application for the appeal. In the ir application for condonation , and
without conceding that the appeal was out of time, they blamed the Chief Director for
not providing them with the reasons when they sought them within the prescribed
period of 30 (thirty) days after his decision was made . Because they were not furnishe d
with reasons after several requests, the respondents filed their appeal, without
reasons on 12 July 2022. They therefore submitted that they were not out of time .4
[6] In their appeal, t hey raised the following grounds :
(i) The WUL was granted without the landowner ’s consent .
(ii) The Chief Director failed to consider all the relevant factors required by s 27
of the NWA.
(iii) The Chief Director failed to apply the precautionary principle given the
material gaps and deficiencies in the WUL application .
(iv) The public participation process concluded was inadequate , in
contravention of the NWA and WUL regulations.
(v) Not all proposed water uses were authorised by the WUL .
Before the high court
[7] In July 2023, before the Tribunal could decide the appeal , the respondents
approached the high court for an interdict . Although the application was couched in
the language of an interim interdict in the notice of motion, the high court granted a
final interdict and Kangra was interdicted from conducting any mining operations at
the adit, pending the determination of the appeal before the Minister . It then granted
leave to appeal directly to this Court on what it perceived to be a novel issue of law :
the interpretation regarding s 148(3) of the NWA as ‘there might be uncertainty about
the issue of locus standi in terms of the NWA that needs clarification .’
Issues for determination before this Court:
[8] Kangra seeks to appeal on the basis that the respondents had no legal standing
to seek the interdict ; that they failed to establish how they would suffer harm if the
4 Section 148(3) (c) read with regulation 4(1) (c) of the Tribunal Rules provides that an appeal may be
submitted within 30 days after the reasons for the decision are gi ven. They reasoned that at the time
that they lodged their appeal, without the reasons from the Chief Director, they were within the 30 -day
prescribed period.
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interdict was not granted ; their appeal against the decision to grant the WUL was late
and therefore invalid ; it did not have the effect of suspending the WUL ; and t he grant
of the interdict would cause Kangra to suffer more harm than the respondents would ,
if they could show any.
[9] Although the high court immersed itself in the interpretation of the National
Environmental Management Act 107 of 1998 (NEMA), t he core issue for determination
in this appeal as it was before the high court is whether the respondents ha d legal
standing to approach the high court for an interdict against Kangra , a licensee of a
purportedly suspended WUL , to prevent them from performing water use and mining
activi ties under the license . Flowing from that , whether the respondents satisfied all
the requirements of an interdict.
The l aw
[10] In Commercial Steve doring Allie d Workers Union and Others v Oak Valley and
Another ,5 the Constitutional Court with reference to the seminal judgment of Setlogelo
v Setlogelo ,6 recently affirmed the law on final interdicts as follows:
‘The requirements for a final interdict are settled. An applicant for such an order must show a
clear right; an injury actually com mitted or reasonably apprehended; and the absence of
similar protection by any other ordinary remedy. ’
[11] Given the conclusion that I have reached in this matter, I do not need to dwell
on the issue of the relevant provisions of the NEMA , nor do I have to spend much time
on the first requirement mentioned above. It would suffice to say that they apparently
base this right on s 32(1)(a) of NEMA.7 For purposes of this judgment, I accept the
finding of the high court without deciding the iss ue, that the respondents have a clear
right to the protection of the environment under s 32(1) (a) of NEMA. Thus, they have
satisfied the first requirement of a final interdict.
5 Commercial Stevedoring Agricultural and Allied Workers Union and Others v Oak Valley Estates (Pty)
Ltd and Another [2022] ZACC 7; [2022] 6 BLLR 487 (CC); 2022 (7) BCLR 787 (CC); 2022 (5) SA 18
(CC) para 18.
6 Setlogelo v Setlogelo 1914 AD 221 at 227. Injury in this sense means an unlawful infringement (actual
or threatened) of the applicant ’s clea r right.
7 Section 32 of NEMA provides:
‘(1) Any person or group of persons may seek appropriate relief in respect of any breach or threatened
breach of any provision of this Act, including a principle contained in Chapter 1, or of any provision of a
specific environmental management Act, or of any other statutory provision concerned with the
protection of the environment or the use of natural resources -
(a) in that person's or group of persons own interest ; …’
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[12] Regarding the second requirement for granting a final interdict, it must be
determined whether the respondents have shown that their right is being interfered
with by the appellant. Essentially, they must show, at least, that a reasonable
apprehension of injury exists. For this, they are required to set out the facts grounding
this apprehension in their founding affidavit to show the link between the unlawful
conduct and the apprehended injury.
[13] The main thrust of the respondents ’ case in seeking the interdict is the
allegation that Kangra ’s mining activities and the unlaw ful use of the WUL, are a
pollution threat to natural spring water in the area where Kangra conducts their mining
activities and that the respondents rely on t his water, to raise their livestock . They
alleged that as neighbouring landowners, they will be ‘impacted ’ by the mining and
water use at the adit. For this , they rely on a report by OMI Solutions dated 12 April
2022 prepared by Ms Chantal Uys (Ms Uys ). Para 11 of the report states:
‘Although gaps were identified, the overall conclusion of this review is that the specialist
studies were not fatally flawed whereby the majority of the anticipated impacts can be
effectively mitigated. It is further anticipated [that] background studies, which were not
reviewed for this pro ject, are available, such as the geotechnical investigation by associated
GFK Consulting Engineers.
The recommendation for exclusion zones made by Goldier (2018) is however considered an
extremely important recommendation which should be implemented. Not implementing this
recommendation is considered a fatal flaw. ’
Therefore, they argue that immediate intervention is required.
[14] However, what does not appear from the respondents ’ founding papers, is that
Kangra has operated the mine for over six years without any reduction of water and
pollution thereof. More importantly, in the interim , Kangra has been operating in terms
of the WUL granted and the water use has not prejudiced the water supplies to the
respondents. In addition, there is constant monitoring of the water use and remedies
available if same causes actual harm. The closest they come to allegin g harm to them
in their founding affidavit is that ‘my concern which is exacerbated by the paucity of
the information provided in the Balgarthen A WUL application as described below, is
that Kangra ’s mining operations may well cause dewatering of the shallow perched
aquifer, which in turn will affect the flow of water in the springs. Should the springs dry
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up, the farming operations will be severely impacted as will the lives of the people who
live on the properties and who depend on t he clean water that is provided by the
springs ’.
[15] The contention on behalf of Kangra is an obvious one that t he respondents
have not alleged any actual harm or apprehension of harm they have suffered. Instead,
they rely on possibilities that may occur in the future. Ms Uys’ report, which is described
as ‘unscientific ’, when considered in its entirety , does not point to actual or
apprehension of harm. Her report does not say anything significantly different from
what Kangra submitted and what the Chief Director considered with other important
information pertaining to granting of a WUL . For instance, s he does not refute that
Kangra did the preliminary investigations contemplated under the regulations and
submitted several reports. Nor does she mention that there were commu nity
consultations, and that Kangra acknowledged the impact on the surface , but that there
was minimal impact which can be mitigated. And in fact, the Kangra report indicates
how mitigation will be undertaken and thereafter the area rehabilitated.
[16] Even if the respondents ’ version is accepted as correct , they support the version
of Kangra in that Ms Uys ’ report confirms the reports of Kangra submitted with its
application . Only t hereafter, Ms Uys identif ies gaps in the application. Among those
gaps, she mentions that the recommendation for exclusion zones must be
implemented. Then on the Plascon Evans principle that version must be accepted as
correct. That should dispose of the respondents ’ application for an interdict.
[17] For the approach I have adopted in the preceding paragraphs, it is unnecessary
to consider other issues raised by the respondents , such as whether the landowner ’s
consent was obtained and the precautionary principle .
[18] However, s omething needs to be said about the gaps in th e Environmental
Authorisation (EA) .8 The respondents attempted to create the impression that if there
8 In Sou th Africa an Environmental Authorisation (EA) is required for certain activities that have the
potential to significantly impact the environment. The authorisation process is governed by the National
Environmental Management Act (NEMA),1998 (Act No 107,199 8) [as amended] as its regulations,
Environmental Impact Assessment (EIA) Regulations (2014). This falls under the Ministry of Foresty,
Fisheries and Environment.
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are gaps in an EA before it is granted, the Chief Director is barred from granting it. Yet
it is common practice and in line with the Environmental Impact Assessment
Regulations of 2014 (the regulations ), that if there are any problems in the
implementation of the plan submitted, and what they call ‘gaps identified ’, those are
addressed incrementally in terms of the regulations b y inter alia the EA being
suspended to address all the queries and or objections or the gaps identified . The
process is an ongoing assessment until there is complete compliance, but the work
continues as provided for under the regulations. An EA once granted cannot be
withdrawn in its entirety , as in this instance work which had already commenced ,
based on a WUL lawfully granted, should not be halted.
[19] To the extent that the respondents could, admittedly, not point to any harm or
potential harm to themselves or others in the surrounding area or even the
environment, they have failed to prove the second requirement of an interdict; that of
harm or apprehension of potential harm. On this le g alone, the appeal ought to
succeed.
Legal standing
[20] Despite my finding that the respondent has legal standing in terms of s 32 of
NEMA , the issue of ‘apprehended harm ’ is directly linked to the issue of legal standing
which the appellant raised squarely before the high court. In their founding papers, the
respondents admittedly did not allege legal standing expressly . They only alleged that
their farms are neighbouring the adit that Kangra uses to access the mine and that
their livestock will be affected by polluted water from the mining activities. Further, the
water levels will be reduced in the future. Only on appeal, did they allege that they had
standing under s 32 of NEMA which provides that anyone who has an interest and
alleges harm in the interest of justice may approach the court.
[21] They, however, admitted that they did not plead this legal standing in their
founding papers and sought to impress upon this Court to accept that ev en if they did
not do so expressly , from a reading of the pleadings, the facts show that they have
legal standing . This is not how pleadings are drafted , or a case is pleaded .
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[22] In Pilane and Another v Pilane and Another ,9 the Constitutional Court stated:
‘The [ applicant ] must stand or fall by their founding papers .’
This means that , an applicant/plaintiff must set out their full case in their founding
papers. Essentially, they must plead issues expressly for the respondent/defendant to
respond properly in their defence and not be ambushed. The high court did not raise
the issue mero motu . It follows that it erred by spending much time in interpreting the
relevant provisions of NEMA instead of dealing with the crisp issue before it: the
interdict sought.
[23] The respondents referred the high court and this Court to a judgment of the
Western Cape high court, Witzenberg Properties (Pty) Ltd v Bokveldskloof Boerdery
(Pty)Ltd and Another (Witzenberg) ,10 as authority that the high court was correct to
hold that the respondents had legal standing to be granted the interdict. Witzenberg is
distinguishable from this case on the facts and the law. In Witzenberg the dispute was
between private entities. Here i t is between a private entit y and a state organ: one of
the private entities challenging an organ of government responsible for implementing
NEMA. Witzenberg is a judgment of a provincial division by a single judge. It is trite
that a decision of a provinc ial division cannot be binding on another provincial division,
albeit strongly persuasive if it is on all fours with that decision. In this instance , it is not.
This case does not assist the respondents.
[24] When this appeal was heard, Kangra had appealed against the order of the
Tribunal granting condonation thereby extending the period within which the
respondents ought to have filed their appeal. The parties have been given dates ,
meaning that the appeal is pending. This meant that, at a practical level, this appeal
ought not to have been entertained. The parties, if so wisely advised, should have
waited for the appeal against the grant of condonation to get underway and a decision
to be made either way before they pr oceeded with this appeal. However, the
respondents maintained that the appeal should proceed.
9 Pilane and Another v Pilane and Another (CCT 46/12 ) [2013] ZACC 3; 2013 (4) BCLR 431 (CC)
(28 February 2013) para 49 .
10 Witzenberg Properties (Pty) Ltd v Bokveldskloof Boerdery (Pty)Ltd and Another [2018] ZAWCHC 83;
2018 (6) SA 307 (WCC) .
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[25] Lastly, it is clear on a reading of s 148 (3) of the NWA that the Tribunal did not
have the power to consider the application for condonation post facto . The Minister
decides whether to grant the WUL . Until that decision has been rescinded or set aside
on any ground by a court of law, it stands . No other avenue can be pursued to
undermine the decision by the Minister which can amount to such incompetent action
being legitimatised by a court of law. The Tribunal ought not to have entertained the
application for condonation or even extended the period within which the condonation
should have been sought. It simply h ad no jurisdict ion to do so .
[26] In the result, the following order issues.
1 The appeal is upheld with costs including the costs of two counsel where so
employed.
2 The order of the high court is set aside and substituted with the following:
‘The application is dismissed with costs , including the costs of two counsel where so
employed. ’
_______________________
B C MOCUMIE
JUDGE OF APPEAL
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Appearances
For the Appellant P F Louw SC (with G J Scheepers SC)
Instructed by Van der Merwe Van den Berg
Attorney s, Pretoria
McIntyre van der Post, Bloemfontein
For the first and Second Respondent s N C Ferreira (with T H Skosana)
Instructed by Malan Scholes Inc, Johannesburg
Claude Reid Inc, Bloemfontein