THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case No: 1165/2023

In the matter between:
ENDANGERED WILDLIFE TRUST FIRST APPELLANT
FEDERATION FOR A SUSTAINABLE SECOND APPELLANT
ENVIRONMENT
and
DIRECTOR-GENERAL (ACTING) FIRST RESPONDENT
DEPARTMENT OF WATER AND SANITATION
ATHA-AFRICA VENTURES (PTY) LTD SECOND RESPONDENT

Neutral citation: Endangered Wildlife Trust and Another v Director -General
(Acting) Department of Water and Sanitation and Another
(Case no 1165/2023) [2025] ZASCA 69 (29 May 2025)
Coram: SCHIPPERS, HUGHES, WEINER and SMITH JJA and
VALLY AJA
Heard: 19 February 2025
Delivered: 29 May 2025
Summary: Statutory appeal – s 149(1) of National Water Act 36 of 1998
(NWA) – against decision of Water Tribunal – confined to question of law – what
the law is on certain issue – High Court incorporating heads of argument into
judgment – no reasonable apprehension of bias established – meaning and effect
of s 24 of NWA – sole question of law – remaining issues questions of fact –
appeal dismissed – costs – vexatious litigation – abuse of court process –
environmental organisations ordered to pay costs.

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________________________________________________________________
ORDER
________________________________________________________________

On appeal from: Gauteng Division of the High Court, Pretoria (Baloyi-Mere AJ
and Nyathi J sitting as court of appeal in terms of s 149(1) of the National Water
Act 36 of 1998):

The appeal is dismissed with costs, including the costs of two counsel where so
employed.

________________________________________________________________
JUDGMENT
________________________________________________________________
Schippers JA (Hughes, Weiner and Smith JJA and Vally AJA concurring)

[1] The appellant s are non -profit environmental organisations. The second
respondent is the owner of Yzermyn Underground Coal Mine (the mine) situated
outside Wakkerstroom , in the Gert Sibande District Municipality (the
Municipality), in Mpumalanga. On 7 July 2016 the first respondent, the Acting
Director General (DG) of the Department of Water and Sanitation (the
Department), issued a water use licence to the second respondent in terms of
Chapter 4 of the National Water Act 36 of 1998 ( NWA). The licence, which is
valid for 15 years, authorises the second respondent to undertake specified water
use activities associated with thermal coal mining to be conducted at the mine.

[2] On 1 December 2017 the appellants noted an appeal, in terms of s 148(1)
of the NWA, to the Water Tribunal (the Tribunal) against the DG’s decision to
issue the water use licence. The Tribunal dismissed the appeal on 22 May 2019.

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[3] On 12 June 2019 the appellants appealed the Tribunal’s decision to the
Gauteng Division of the High Court, Pretoria (the High Court) , in terms of
s 149(1) of the NWA . On 11 May 2023 the High Court ( Nyathi J and Baloyi -
Mere AJ) dismissed the s 1 49 appeal with costs . The High Court refu sed the
appellants leave to appeal. The appeal is before us with special leave of this Court.

The basic facts
[4] The basic facts are uncontroversial and can be briefly summarised. In 2011
the second respondent acquired coal prospecting rights under the Minerals and
Petroleum Resources Development Act 28 of 2002 (MPRDA) to an area of 8360
hectares outside Wakkerstroom, Mpumalanga. These rights were previously held
by BHP Billiton, Ingwe Colliery and Bonengi Mining Services. The prospecting
area covered 12 privately -owned farms. After an in itial exploration process, a
second exploration process was undertaken from July to November 2013.

[5] After the exploration, in 2013 the second respondent was granted a mining
right under the MPRDA in respect of only five farms. These farms consist of
agricultural, grassland and forestry areas, and vacant land with rivers and
wetlands. The main land uses include agriculture, conservation and cultivation.

[6] The proposed underground coal mining area is extensive – some 1200
hectares. Initially the surface infrastructure would have covered over 50 hectares,
but this was reduced to approximately 22.4 hectares. The mine is anticipated to
produce 2.2 million tons of coal per annum, with an estimated lifespan of
15 years.

[7] If mining commences, the mine will use the bord and pillar method. This
entails the removal of large areas of coal -containing or e, by leaving in place
‘pillars’ of co al to hold up the roof of the underground mine. Two adits ( a
horizontal passage to give access from the surface ) will be sunk to access the

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underground coal seams. The mining project will involve underground drilling
and blasting, the extraction, crushing, screening and stockpiling of coal product,
and the transportation of the coal product for sale.

[8] Initially t he second respondent engaged the services of WSP
Environmental (Pty) Ltd (WSP) to conduct a social and environmental impact
assessment. WSP produced several specialist reports in 2013. These include a
hydrological assessment; socio-economic assessment; geohydrology impact
assessment; and a biodiversity baseline and impact assessment.

[9] Similar specialist studies were conducted by Scientific Aquatic Services
(Pty) Ltd (SAS) on behalf of the second respondent. In February 2013 SAS
produced reports containing a faunal, floral and wetland ecological assessment ;
and an environmental assessment and authorisation for the proposed disc ard
dump as part of the mining project. The initial SAS report s were revised in
February 2014. SAS also produced a Wetland Ecological Assessment in June
2014, which was revised in May 2015. The SAS reports were revised because the
DG on 9 January 2014, informed the Department of Mineral Resources of several
concerns relating to the min e and why the proposed mining could not be
supported.

[10] Subsequently WSP was replaced by EcoPartners , an environmental
assessment practitioner, which revised the relevant reports in accordance with
concerns raised by the Department of Environmental Affairs regarding the second
respondent’s application for an environmental authorisation. As a result,
substantial changes were made to the mine design, layout and surface footprint.

[11] The second respondent appointed XMP Consulting (Pty) Ltd (XMP) to
furnish a report on the economic impacts of the mine. In October 2013 XMP
produced a report entitled, ‘Review of the South African Coal Mining Industry’.

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[12] The application for the water use licence was compiled by Kara Nawa
Environmental Solutions, and submitted on 10 March 2014. On 10 April 2014
the DG advised the second respondent that the application was incomplete ; that
several reports and studies had to be submitted or revised; and that an Integrated
Water and Waste Management Plan (IWWMP) was required . This was done
between April 2014 and March 2015.

[13] In June 2014 EcoPartners appointed SAS to conduct, inter alia, a wetland
ecological assessment. In August 2014 EcoPartners produced a downstream
water usage report, and appointed Delta H Water Systems Modelling , which
produced the Yzermyn Underground Coal Mine – Numerical Groundwater
Model Report (the Delta H report), drafted by Prof Kai Witthüser.

[14] On 18 March 2015 the second respondent submitted a revised water use
licence application to the Department, together with its IWWMP, based on new
studies and design modifications in accordance with the directions from the DG.
On 22 April 2015 the Department informed the second respondent that the public
participation process which had been carried out ‘was not specific on the water
use activities as per the NWA’. The Department required an advert to be placed
in one newspaper for a period of 60 days for a public participation process in
terms of s 40(4) of the NWA. The second respondent was also directed to submit
the mining permit, mini ng right and a social and labour plan as part of its
application.

[15] On 19 June 2015 the second respondent caused a notice of a public
participation process concerning the application for a water use licence, to be
published in three local newspapers in terms of s 41(4) the NWA . The notice ,
published in English, Afrikaans and isiZulu, informed the public of their right to
submit comments between 19 June 2015 and 20 August 2015 . A draft of the
IWWMP was published with the notice.

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[16] On 27 August 2015 the second respondent submitted the revised IWWMP
and application for the licence to the Department. The first appellant responded
to this in a one -page letter dated 30 September 2015, stating that it opposed the
application.

[17] On 20 April 2016 the DG advised the second respondent that the formal
requirements for the application of the water use licence had been met. A Record
of Recommendations was compiled on 5 July 2016 . The second appellant
apparently objected to the application in a letter dated 27 June 2016. However,
the Department denied receipt of that letter. The DG approved the application on
7 July 2016.

[18] On 18 November 2016 the appellants commissioned various experts to
review the second respondent’s technical report s (to which they had been given
access on 3 August 2015 already). These specialist review studies obviously were
not before the DG when the decision to grant the water use licence was taken.
The appellants furnished no reasons why the specialist studies had been
commissioned after the licence had been issued. Neither were the specialist
studies nor other studies which were in possession of the appellants and their
attorneys, Centre for Environmental Rights (CER) , provided to the second
respondent’s consultants, prior to the hearing of the appeal in July 2018. Some
documents co -authored by the CER itself and reports by other civil society
organisations published in 2011, which the CER used in its advocacy work, had
to be introduced after an application to the Tribunal by the appellants to reopen
their case in October 2018.

[19] On 15 December 2016 the CER filed a notice of appeal against the DG’s
decision to grant the water use licence. The CER was also involved as an
interested and affected party in the application for the licence.

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[20] Nearly a year later, on 1 December 2017 the appellant s amplified their
grounds of appeal. They substantially changed several of their arguments and
abandoned some that had become indefensible in the light of the specialist
reviews which they had obtained.

[21] The grounds of appeal, in sum, were these:
(a) The DG failed to consider the likely effect of the proposed water uses on
the water resource and on other water users , required by s 27(1)(f) of the
NWA. The DG also failed to give effect to the efficient and beneficial use
of water in the public interest, required in terms of 27(1)(c) of the NWA.
(b) The DG failed to authorise two water uses associated with the closure of
the mine, namely the discharg e of water containing waste into a water
resource (s 27(1)(f) of the NWA) , and the disposal of waste in a manner
which may detrimentally impact on a water resource ( s 27(1)(g) of the
NWA).
(c) The DG failed to apply the precautionary management principle in
s 2(4)(a)(vii) of the National Environmental Management Act 107 of 1998
(NEMA), required by s 2(1) of the NEMA.
(d) The DG’s decision to grant an exemption in terms of regulation 4(b) of
Government Notice 704 in respect of water uses associated with the mine,
was unjustifiable.
(e) The DG failed to consider the true socio -economic impact of the water
uses, if authorised, required by s 27(1)(d) of the NWA.
(f) The DG failed to give effect to the right to procedurally fair administrative
action as contemplated in s 3 and s 4 of the Promotion of Administrative
Justice Act 3 of 2000 (PAJA).
(g) The DG failed to consider material information relating to the strategic
importance of the water use, required by s 27(1)(i) of the NWA.

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[22] Before the Tribunal the appellants adduced evidence by three witnesses,
namely Mr Andrew Johnstone, a hydrogeologist; Dr Le Maitre, a researcher with
expertise in ecosystem services assessment and mapping ; and Ms Christine
Colvin, a hydrogeologist.

[23] The DG presented the evidence of Ms H asina Aboobaker. She is the
environmental officer who prepared the Record of Recommendations for the
issuance of the water use licence.

[24] Mr Praveer Tripathi , t he second respondent ’s Senior Vice President ,
testified that it acquired the mine as a result of an investment conference in India
at which the South African government sought investments. The second
respondent paid US$40 million for the equity in Bongeni. The entire process to
commission specialist studies to secure the necessary authorisations and permits
had cost the second respondent US$61 million. Over three years the company had
expended over US$700 million in respect of the mine. Mr Tripathi said that the
mine would create some 500 jobs and that the coal to be mined would be traded
in domestic and international minerals markets.

[25] The second respondent called four expert witnesses, namely Mr Peter Smit,
an environmental assessment practitioner in mining management; Dr Frederik
Botha, a hydrogeologist who specialises in managing the geological design and
planning of mines; Prof Witthüser, a specialist hydrogeologist in water systems
modelling; and Mr Stephen Van Staden, a wetland ecologist who co-authored the
SAS reports. Mr Thabiso Nene, a community leader of the area in which the mine
is located, also gave evidence on behalf of the second respondent. The Tribunal
heard evidence over seven days.

The Tribunal’s decision
[26] The Tribunal dismissed the appeal . Its findings may be summarised as
follows. Th e first ground of appeal was unsubstantiated. The evidence of

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Prof Witthüser and Dr Botha and the detailed Delta H and SAS reports showed
that scientifically sound methods were used in the wetland and hydrogeological
studies. The DG considered the recommendations, some of which were negative.
This led to the imposition of several conditions in the water use licence, requiring
the second respondent to take measures to prevent pollution, monitor
underground water pollution and report thereon. The second respondent adduced
expert evidence on the prediction of decant and the proposed mitigation measures
in the form of a modularised water treatment plant. The appellants’ claim that no
provision was made for a water treatment plant post-mining, was unfounded. The
DG properly considered s 27(1)(c) and (f) of the NWA , imposed appropriate
conditions to address the adverse impact s of the authorised water uses and the
decision to issue the water use licence was reasonable, fair and rational.

[27] The Tribunal found that the appellants’ claim that the DG failed to
authorise two water uses associated with the closure of the mine, had no merit.
These water uses related to the discharge of water containing waste into a water
source (s 21(f) of the NWA) and the disposal of waste in a manner which may
detrimentally impact on a water resource (s 21 (g)). The evidence demonstrated
that there was no data nor accurate information on the nature and volumes of
water required to be treated after closure of the mine. The w ater use licence
contains a condition requiring the second respondent to prepare a closure plan
five years before decommissioning of the mine , when such volumes and flows
would be clear. Further, the licence provides for a review of the conditions every
two years, which authorises a variation of existing conditions or the imposition
of new ones; and s 52 of the NWA provides for ‘earlier renewal or amendment’
of a licence, which would include the authorisation of water uses for post-mining
activities.

activities.

[28] Concerning the alleged failure to apply the precautionary principle in the
NEMA, it was common ground that the mining operations would result in a

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degree of contamination of ground water and surface water. What was disputed
was the degree of such contamination and what would constitute sufficient
mitigating measures. The Tribunal stated that for the precautionary principle to
apply, it had to be demonstrated that the mine poses a threat of serious or
irreversible environmental damage; that there is scientific uncertainty regarding
such damage; that the measures taken should not go beyond what is needed; and
that the principle does not necessarily prohibit development.

[29] Coal mining, the Tribunal said, is a centuries old industry and the methods,
impacts and environmental dynamics around this activity were generally known
and well established. The scientific evidence submitted by the experts on both
sides showed a clear understanding of the potential risks of coal mining to water
resources. What was however uncertain, was the volume and quality of decant
post-mining, because mine data is obtainable only once mining commences ,
when mining plans and post-closure rehabilitation plans are designed.

[30] The Tribunal stated that the precautionary principle should be considered
together with other principles in s 2(4) of the NEMA , particularly those relating
to sustainable development. The appellants’ case was based on the GCS Review
findings and other expert reviews , which were demonstrated to be shallow and
lacking in ground truthing. However, the respondents did not provide absolute
levels of comfort. Based on the evidence adduced, the Tribunal found that the DG
had considered the precautionary principle and that its application did not
preclude the issuance of the water use licence . It said that the principle does not
require unequivocal scientific certainty before decisions are taken, otherwise no
development would be authorised.

[31] The Tribunal found that the DG’s decision to grant an exemption in terms
of regulation 4(b) of Government Notice 704 in respect of water uses associated

of regulation 4(b) of Government Notice 704 in respect of water uses associated
with the mine, was necessary for mining to take place. The appellants placed no

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information before the Tribunal to demonstrate why the granting of the exemption
was unjustified. The basis for this ground of appeal was the GCS Review which
the Tribunal found, was scientifically flawed.

[32] Regarding the fifth appeal ground – the failure to consider the socio -
economic impact of the water uses – the appellants submitted that documents
before the DG did not ‘report objectively and fully on the possible effects of the
proposed colliery on people living in the area’; that a significant number of jobs
were not going to be created; and that most of the people work on surrounding
farms, and derive a limited income from farm jobs and social grants. The Tribunal
rejected these submissions for the following reasons. Part of the appellants’
arguments were based on ex post facto reviews that were not placed before the
DG when the impugned decision was taken. They placed no evidence nor
information before the Tribunal to demonstrate the alleged negative socio -
economic impacts resulting from the grant of the licence. In fact, the appellants
conceded that they presented no evidence by local communities nor farmers, and
that the y focus on ‘the wider interests of water resources in the country as a
whole’.

[33] The Tribunal noted that s 27(1)(d) of the NWA required it to consider not
only the socio -economic impact of a uthorising water uses, but also the
consequences of a failure to authorise such uses. In contrast to the appellants, the
respondents provided evidence on both these issues. And Mr Nene’s evidence
that the mining area is characterised by poor families earning low wages, which
is supplemented with bags of mealie meal from farmers, went unchallenged. He
said that any number of jobs from the mining company would be better than work
on farms, which kept the community impoverished.

[34] The Tribunal also had regard to s 27(1)(f) of the NWA and held that there
were sufficient detailed reports on the impacts of water uses on the wetlands,

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underground water, springs and aquifers in the mine site ; and that the reserve
determination was a measure of assurance that there would be sufficient water for
ecological needs after granting the water use licence. The Tribunal accordingly
found that there would be a positive socio -economic impact on the local
community. The estimate of 70 jobs during construction and 576 jobs during the
operational phase would make a substantial difference to the livelihoods of the
community, which had not been enriched by current water uses.

[35] Although counsel for the appellants had indicated that they were not
persisting with the challenge based on procedural unfairness, the Tribunal
nonetheless found that it had no foundation. The second respondent conducted a
public participation process as required by s 41(4) of the NWA. The appellants
had registered as interested and affected parties . The CER was provided with
revised reports, a letter explaining why wetland offsetting was not possible and a
table of final mitigation measures, after it sought information under the
Promotion of Access to Information Act 2 of 2000.

[36] The Tribunal found that the DG’s alleged failure to consider ‘the strategic
importance of the water use s to be authorised’ , as required by s 27(1) (i) of the
NWA; and that the exploitation and use of natural resources must be responsible
and equitable as envisaged in s 2(4)(a)(v) of the NEMA. The Tribunal found that
this challenge lacked evidence and was based on vague submissions. It held that
s 27(1)(i) had to be read with s 27(1)(h), which requires the responsible authority
to consider ‘investments already made and to be made by the water user’ , about
which the appellants said very little. Further, the life of the mine is 15 years,
which is relatively short compared to other large-scale coal mining operations in
the country.

[37] The appellants added a further ground of appeal midway through the

the country.

[37] The appellants added a further ground of appeal midway through the
hearing, namely that the respondents had not obtained the consent of the owner

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of the farm Zoetfontein, required by s 24 of the NWA. This, despite the fact that
the licence was issued subject to the condition that the second respondent would
not be allowed to commence underground mining, until it provide s the
Department with a signed copy of a consent form (DW902) by the owner of
Zoetfontein, declaring that the licensee has lawful access to that property and may
carry out the water use activity related to the licence.

[38] Section 24 provides that if consent cannot be obtained or is withheld, the
decision-maker may still grant the water use licence ‘if there is good reason to do
so’. The second respondent informed the owner in writing of the public
participation process and discussed it with him . Thereafter, nothing was heard
from the owner. Having regard to these facts, and the considerations in s 27(1) of
the NWA, the Tribunal found that there were good reasons to dispense with the
owner’s consent as contemplated in s 24 of the NWA.

[39] The Tribunal dismissed the appeal. It confirmed the water use licence and
imposed three additional conditions. First, the second respondent is required, in
terms of clause 14.1 of the water use licence, to provide the DG with proof of
financial provision made in terms of legislation other than the NWA. Second, the
DG is required, within 60 days of the Tribunal’s decision and before
commencement of mining, to review the adequacy of the financial provision by
the second respondent and if necessary, require the second respondent to provide
further financial security in accordance with s 30 of the NWA. And third, the two-
yearly review of the water use licence in terms of clause 4.1 thereof, must include
a focused review by the DG of the adequacy of financial or budgetary provision
made for post-closure water treatment and remediation, consistent with
prescribed monitoring and auditing reports on possible future impacts.

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The appeal to the High Court
[40] In their notice of appeal in terms of s 149(1) of the NWA , the appellants
set out 11 grounds of appeal, which they said are all questions of law. Some five
months later they added a twelfth ground. However, the appellants persisted only
with five grounds of appeal in the High Court.

[41] In sum, the appeal grounds were these:
(a) Ground 1: The Tribunal failed to consider the strategic importance of the
mining area for water security and biodiversity.
(b) Ground 2: The Tribunal erred in holding that there were good reasons to
grant the water use licence in the absence of the landowner’s consent ,
contrary to s 24 of the NWA.
(c) Ground 3: The Tribunal erred in finding that the appellants had a duty to
place before it, evidence regarding socio-economic impacts. The statutory
framework places that duty on the second respondent as the applicant for a
water use licence.
(d) Ground 4: The Tribunal erred in finding that the licence provides for the
treatment of contaminated water after closure of the mine. It ought to have
found that the DG could not in the licence, legally make provision for the
treatment of contaminated water post-closure of the mine at the end of the
licence period.
(e) Ground 5: The Tribunal erred in its interpretation and application of the
precautionary principle in s 2(4) (a) of the NEMA , including the
precautionary principle in s 2(4)(a)(vii). It ought to have found that the
application of the precautionary principle had been established, and that it
militated against the granting of the water use licence.

[42] The High Court dismissed the appeal , with costs . It s judgment may be
summarised as follows. The NEMA principles do not preclude any adverse
impacts on the environment. Neither do the se principles constitute a checklist

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with which a development must comply. Rather, adverse impacts should be
avoided, failing which they should be mini mised or remedied; and the NEMA
principles constitute normative guidelines.

[43] The court stated that the precautionary principle traditionally applies in a
case where there is scientific uncertainty about the existence or extent of the risks
or consequences of a decision or an action; and that it applies where such risks or
consequences are known, but there is scientific uncertainty about the efficiency
of the mitigation measures in preventing or reducing the risk or consequences.
The court held that the precautionary principle had been met in this case.

[44] The High Court agreed with the Tribunal’s finding that the wetland
hydrological studies were scientifically defensible ; and that the second
respondent had demonstrated compliance with the relevant provisions of the
NWA and that the necessary precautionary measures had been put in place . It
accepted that i n deciding the matter, the Tribunal sought to harmonise the
prevention of pollution and environmental degradation with the promotion of
economic and social development.

The issues
[45] This appeal raises the following issues:
(a) Did the High Court fail to give an independently reasoned judgment?
(b) The nature and ambit of an appeal under s 149(1) of the NWA.
(c) Did the Tribunal fail to consider the strategic importance of the mining area
for water security and biodiversity?
(d) The proper construction of s 24 of the NWA.
(e) Did the Tribunal err in failing to find that there was no provision for post-
closure treatment of contaminated water?
(f) Did the Tribunal err in its application of the precautionary principle?

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The alleged failure to give an independently reasoned judgment
[46] The appellants submit that the High Court’s failure to give an
independently reasoned judgment gives rise to a reasonable apprehension of bias,
and infringed their right to a fair trial enshrined in s 34 of the Constitution.1 This
submission is based solely on the contention that the judgment consists largely of
the written heads of argument of the second respondents’ counsel, which the High
Court copied verbatim; and it shows ‘essentially no sign of original or
independent application or reasoning’.

[47] It is then submitted that a judgment which simply adopts one party’s heads
of argument, does not give the other party a fair hearing or a decision that reflects
the necessary independence and impartiality implicit in s 34 of the Constitution,
insofar as it applies to courts. The appellants’ right to have a dispute resolved, it
is submitted, contemplates a deliberative process where the evidence, the law and
the parties’ competing contentions are heard, understood and subjected to critical
scrutiny; and which produces an outcome through a process of independent
reasoning.

[48] The test for bias is settled. There must be (i) a reasonable apprehension that
the judicial officer might (not would) be biased; (ii) by a reasonable person in the
position of the litigant ; (iii) which is based on reasonable grounds; and (iv) the
apprehension must be one that a reasonable person would (not might) have.2 The
Constitutional Court has held that a litigant who alleges judicial bias or its
apprehension bears a formidable burden, because of the presumption of
impartiality by virtue of the constitutional oath of office that judicial officers are

1 Section 34 of the Constitution provides:
‘Access to courts
Everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public
hearing before a court or, where appropriate, another independent and impartial tribunal or forum. ’

2 S v Roberts 1999 (4) SA 915 (SCA) paras 32-34; President of the Republic of South Africa and Others v South
African Rugby Football Union and Others 1999 (4) SA 147 (CC) para 30; Bernert v Absa Bank Ltd [2010] ZACC
28; 2011 (4) BCLR 329 (CC); 2011 (3) SA 92 (CC) (Bernert) para 29; C Hoexter and G Penfold Administrative
Law in South Africa 3 ed (2021) at 618-619.

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required to take, as well as the nature of the judicial function.3 The effect of this
presumption ‘is that a judicial officer will not lightly be presumed to be biased’.4
The test for bias posits a double requirement for bias : both the person who
apprehends bias and the apprehension itself must be reasonable.5

[49] There is even a greater burden on the appellants in this case – a decision
by a court comprising two judges. The allegation that the court failed to give an
independently reasoned judgment, is opportunistic and baseless. The appellants
ignore the court’s order in their favour issued against the second respondent. In
its heads of argument in the High Court , the second respondent made the
following submissions. The CER had a direct and substantial interest in the
matter, and the appellants had advanced a partisan and misleading case in the
proceedings before the Tribunal and the High Court. The appeal was an abuse of
process to advance their agenda against any form of coal mining. The appellants
should pay the costs of the appeal on an attorney and client scale ; and the CER,
de bonis propriis.

[50] The High Court struck out these allegations as being vexatious. It ordered
the second respondent to pay the costs of the appellants , the CER and various
other public interest law centres admitted as amici curiae.

[51] This is a clear indication of the High Court’s impartiality, and that it gave
an independently reasoned judgment. It follows that the appellants’ apprehension
that the court might be biased, is not only unreasonable, but groundless – the court
rejected submissions contained in the second respondent’s heads of argument –
the very document on which the appellants rely for their contention that they did
not get a fair hearing, or a decision that demonstrates independence or impartiality
on the part of the judges hearing the appeal.

3 Bernert fn 2 para 31.
4 Bernert fn 2 para 33.
5 Bernert fn 2 para 34.

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[52] In any event, the allegation of bias has no substance. It is apparently based
on the findings of the High Court in its judgment. It is submitted that they are
taken verbatim from the second respondent’s heads of argument ; and that the
appellants’ appeal grounds ‘received scant treatment, with no analysis to speak
of’.

[53] The appellants are mistaken . The High Court set out the respective cases
of the parties and outlined the issues, which the appellants alleged were questions
of law. Nothing turns on the fact that th ese parts of the judgment were copied
from heads of argument : there is no complaint that the court misconstrued the
appellants’ case or the issues it had to decide. Next, the court considered each
issue, at the end of which it stated its conclusions. A plain reading of the judgment
shows that the High Court’s findings are sustainable on the evidence adduced
before the Tribunal.

[54] The appellant’s reliance on Stuttafords Stores ,6 is therefore misplaced.
There, the Constitutional Court stated that furnishing reasons in a judgment
prevents arbitrary decisions, and explains to the parties and the public at large –
which has an interest in courts being open and transparent – why a case is decided
as it is.7 It is no authority for the submission that the incorporation of a portion of
a party’s heads of argument in a judgment, gives rise to a reasonable apprehension
of bias.

[55] As stated by the Constitutional Court, the very nature of the judicial
function requires judicial officers to be impartial. 8 Judges by training and
experience, are adept at deciding cases by objective assessment of the facts. An
appellate court must therefore decide whether objectively, the facts of the specific

6 Stuttafords Stores (Pty) Ltd and Others v Salt of the Earth Creations (Pty) Ltd 2011 (1) SA 267 (CC) (Stuttafords
Stores) paras 10 and 11.
7 Stuttafords Strores fn 6 paras 10 and 11.
8 Bernert fn 2 para 32.

19


case give rise to a reasonable apprehension that the judge might not have been
impartial. If they do, the judge’s decision must be set aside.

[56] In this case , the test is whether there is a reasonable apprehension by
reasonable or f air-minded litigants that the two judges who decided this case
might have closed their minds to the appellant s’ appeal grounds . This is a
formidable burden. Extensive reliance on a party’s heads of argument by itself,9
does not amount to a rea sonable apprehension of a lack of independence ,
partiality or what counts as bias for these purposes. After all, the very purpose of
heads of argument is to convince a court of appeal that the court below either
erred or was correct.10

[57] Further, there is nothing wrong with incorporating portions of a party’s
heads of argument in a judgment. In a paper on skeleton arguments in the United
Kingdom, based on papers w ritten by Lord Justice Mummery, Mr Justice Hunt
and Mr Edmund Lawson QC, the authors say this:
‘Advocacy is the art of persuasion through communication. The increased use of written
advocacy is not, as some claim, the death of oral advocacy. A carefully drafted written
submission can, when skilfully used at the oral hearing, enhance the impact of argument.
…
In short, your skeleton can be used as an implement of decision . That is what you should be
aiming to achieve. The court, not the client or the solicitor or your opponent or you, is the
“consumer”. . . . When drafting a skeleton it is vital to bear in mind what you want the court
to say when it gives judgment. The most flattering judgments incorporate half the skeleton.’11

[58] This shows that no right -thinking litigant could apprehend, let alone
reasonably apprehend, that the mere incorporation of an argument in a judgment

9 The the appellants say that the judgment ‘for the most part’, is a copy of the second respondents’ heads of
argument.

argument.
10 L T C Harms ‘Heads of Argument in Courts of Appeal’ (2009) Vol 22 Advocate 3 at 20.
11 Michel Kall ipetis QC and Geraldine Andrews QC ‘Skeleton Arguments: A Practitioners’ Guide’ The
Honourable Society of Gray’s Inn (August 2004). (Emphasis added.)

20


is indicative of bias, or an infringement of the right to a fair trial. Something more
is required ; something which points to a reasonable apprehension of a
predetermined closed mind in the adjudication of the case itself. This, the
appellants have not demonstrated and their attack on the High Court’s order on
this ground must fail.

The nature of an appeal under s 149(1) of the NWA
[59] Section 146 of the NWA establishes the Tribunal. 12 It states that the
tribunal is an independent body which has jurisdiction in all provinces ;13 that it
consists of a chairperson, deputy chairperson and as many additional members as
the Minister responsible for water affairs considers necessary.14

[60] Appeals lie to the Tribunal in several situations identified in s 148(1) of the
NWA. These include an appeal by the applicant or any other person who has
timeously lodged a written objection, against a decision by a responsible authority
on an application for a water use licence under s 41, or on any other application
to which s 41 applies.15

[61] Section 148(4) states that the procedure for lodging, hearing and deciding
appeals is contained in Part 2 of Schedule 6 to the NWA. It em 6(3) of Schedule
6 to the NWA provides:
‘Appeals and applications to the Tribunal take the form of a rehearing. The Tribunal may
receive evidence, and must give the appellant or applicant and every party opposing the appeal
or application an opportunity to present their case.’

[62] Section 149 of the NWA provides:
‘Appeals from decisions of Water Tribunal
(1) A party to a matter in which the Water Tribunal-

12 Section 146(1) of the NWA.
13 Section 146(2)(a) of the NWA.
14 Section 146(3) of the NWA.
15 Section 146(1)(f) of the NWA.

21


(a) has given a decision on appeal under section 148, may, on a question of law, appeal to
a High Court against that decision; or
(b) has determined the liability for compensation or the amount of compensation under
section 22 (9), may, on a question of law, appeal to a High Court against that
determination.
(2) The appeal must be noted in writing within 21 days of the date of the decision of the
Tribunal.
(3) The notice of appeal must-
(a) set out every question of law in respect of which the appeal is lodged;
(b) set out the grounds for the appeal;
(c) be lodged with the relevant High Court and with the Water Tribunal; and
(d) be served on every party to the matter.
(4) The appeal must be prosecuted as if it were an appeal from a magistrate's court to a High
Court.’

[63] In the light of the plain wording, context and purpose of the NWA , an
appeal under s 149(1) is confined to a question of law.16 Section 149(1) grants the
right of appeal from a decision of the Tribunal to a High Court ‘on a question of
law’; and requires the appellant to set out every question of law and the grounds
of appeal, ie the grounds on which the question of law is based.

[64] This construction accords with the purpose of the NWA and the role of the
Tribunal. The preamble to the NWA includes the recognition of the ‘National
Government’s overall responsibility for and authority over the nation’s water
resources and their use’. Section 2 states that the purpose of the NWA ‘is to ensure
that the nation’s water resources are protected, used, developed, conserved,
managed and controlled’ in ways that take into account amongst other factors,
‘promoting the efficient, sustainable and beneficial use of water in the public
interest’.17 Section 3 vests the public trusteeship of the nation’s water resources
in the national Government, acting through the Minister, w ho ‘is ultimately

16 Natal Joint Municipal Pension Fund v Endumeni Municipality [2012] ZASCA 13; [2012] 2 All SA 262 (SCA);

2012 (4) SA 593 (SCA) (Endumeni) para 18.
17 Section 2(d) of the NWA.

22


responsible to ensure that water is allocated equitably and used beneficially in the
public interest, while promoting environmental values’.18

[65] The Tribunal is a specialist body with expertise in engineering and water
resource management. Section 146(4) of the NWA states that its members ‘must
have knowledge in law, engineering, water resource management or related fields
of knowledge’. These members are nominated for appointment by the Judicial
Service Commission and the Water Research Commission, who are required to
consider the criteria set out in s 146(4) and the reputation and integrity of
nominees when recommending them.19 Section 147(1) provides that the
Chairperson of the Tribunal may nominate one or more members to hear a matter,
‘after having considered the necessary field of knowledge for the purposes of
hearing a particular matter’.

[66] As to what constitutes a question of law, in Media Workers Association,20
E M Grosskopf JA said:
‘The term “question of law,” the learned author states, is used in three distinct though related
senses. In the first place it means a question which a Court is bound to answer in accordance
with a rule of law - a question which the law itself has authoritatively answered to the exclusion
of the right of the Court to answer the question as it thinks fit in accordance with what is
considered to be the truth and justice of the matter. In a second and different signification, a
question of law is a question as to what the law is. Thus, an appeal on a question of law means
an appeal in which the question for argument and determination is what the true rule of law is
on a certain matter. A third sense in which the expression “question of law” is used arises from
the division of judicial functions between a Judge and jury in England and, formerly, in South
Africa. The general rule is that questions of law in both the aforegoing senses are for the Judge,
but that questions of fact (that is to say, all other questions) are for the jury.’

but that questions of fact (that is to say, all other questions) are for the jury.’

[67] Thus, a question of law within the meaning of s 149(1) of the NWA, is an
appeal on a question as to what the law is on a certain issue , concerning water

18 Section 3(1) and (2) of the NWA.
19 Item 3(5)(a) and (b) of Schedule 6 to the NWA.
20 Media Workers Association of South Africa and Others v Press Corporation of South Africa Ltd. (Perskor)
1992 (4) SA 791 (AD); [1992] 2 All SA 453 (A) at 795D-F.

23


resource management. The court is required to ‘ascertain the rule of law and to
decide in accordance with it’.21

[68] The point may be illustrated with reference to Magmoed.22 The case
concerned the meaning of a ‘question of law’ as contemplated in s 319 of the
Criminal Procedure Act 51 of 1977. One of the issues was whether as a matter of
law, the trial court was correct in concluding that no unlawful common purpose
on the par t of any of the accused was established beyond reasonable doubt. In
finding that this was not a question of law, Corbett CJ said:
‘It is a genuine question of law (a) whether the evidence against an accused was such that there
was a case to go to the jury or that there were grounds upon which the jury could legally convict
the accused of the crime charged; or (b) whether the proven facts bring the conduct of the
accused within the ambit of the crime charged. . . . As the quotation from the judgment of
Feetham JA indicates, category (b) involves an enquiry as to the essence and scope of the crime
charged by asking whether the proven facts in the particular case constitute the commission of
the crime. This is clearly a question of law. But, in my opinion, a question of law is not raised
by asking whether the evidence establishes one or more of the factual ingredients of a particular
crime, where there is no doubt or dispute as to what those ingredients are.’23

[69] This construction is buttressed by two factors: (i) the Tribunal is a specialist
body with expertise in a specific case, having regard to s 147(4) and (5) of the
NWA; and (ii) its decisions constitute administrative action and are therefore
reviewable under the PAJA. I n fact , in 2019 the appellants launched an
application in the High Court to review and set aside not only the Tribunal’s
decision, but also the DG’s decision to issue the water use license to the second
respondent. That application is pending.

[70] The above construction is further reinforced by the presumption of

[70] The above construction is further reinforced by the presumption of
interpretation that the Legislature knows and has in mind the existing law when

21 Media Workers Association of South Africa and Others v Press Corporation of South Africa Ltd (‘Perskor’)
1992 (4) SA 791 (A) at 796G-H.
22 Magmoed v Janse van Rensburg and Others 1993 (1) SA 777 (A) (Magmoed).
23 Magmoed fn 22 at at 807G-808A.

24


passing legislation.24 Although the NWA was passed prior to the coming into
force of the PAJA, Parliament certainly would have been aware of the
fundamental right to just administrative action in s 33 of the Constitution ; and
that the decisions of the Tribunal would be subject to review. 25 And this Court
has held that decisions of the Tribunal constitute administrative action, which are
reviewable under the PAJA.26

[71] In what follows, the so-called questions of law are considered. As is shown
below, save for the meaning and effect of s 24 of the NWA, the s 149(1) appeal
does not concern questions of law.

Ground 1: Failure to consider the strategic importance of the mining area
[72] The notice of appeal states that the Tribunal erred in considering the
following as irrelevant: the mine area falls partly within the Enkangala
Drakensberg Strategic Water Source Area, according to reports by the Council
for Scientific and Industrial Research (CSIR) in 2013 and 2018; and the need for
such areas to receive specific protection in decision-making. Then it is said that
the question of law raised by this ground of appeal includes the following:
whether the mine area falls within the Enkangala Drakensberg Strategic Water
Source Area; the findings in the 2013 and 2018 CSIR reports; and whether the
evidence of Ms Colvin and Dr Le Maitre constitute relevant factors as
contemplated in the opening part of s 27(1) or s 27(1)(a), (b), (c), (d), (e), (f), (g),
(i) or (j) of the NWA.

[73] These are questions of fact dressed-up as questions of law. The appellants’
complaint is essentially that the Tribunal failed to consider all relevant factors,
including but not limited to the factors listed in s 27(1) of the NWA. The

24 Independent Institute of Education (Pty) Ltd v KwaZulu-Natal Law Society and Others [2019] ZACC 47; 2020
(2) SA 325 (CC); (2020 (4) BCLR 495 (CC) para 38.

(2) SA 325 (CC); (2020 (4) BCLR 495 (CC) para 38.
25 Section 33(1) of the Constitution provides that ‘Everyone has the right to administrative action that is lawful,
reasonable and procedurally fair.’
26 Makhanya NO and Another v Goede Wellington Boerdery (Pty) Ltd [2012] ZASCA 205; [2013] 1 All SA 526
(SCA) para 31.

25


appellants submit that proposed mine area falls within a strategic water source
area as appears from the 2013 and 2018 CSIR reports; that it also forms part of a
river freshwater ecosystem priority area in the Atlas of National Freshwater
Ecosystem Priority Areas in South Africa; and that the Tribunal failed to take
these factors into account.

[74] Section 27(1) provides:
‘Considerations for issue of general authorisations and licences
(1) In issuing a general authorisation or licence a responsible authority must take into account
all relevant factors, including-
(a) existing lawful water uses;
(b) the need to redress the results of past racial and gender discrimination;
(c) efficient and beneficial use of water in the public interest;
(d) the socio-economic impact-
(i) of the water use or uses if authorised; or
(ii) of the failure to authorise the water use or uses;
(e) any catchment management strategy applicable to the relevant water resource;
(f) the likely effect of the water use to be authorised on the water resource and on other
water users;
(g) the class and the resource quality objectives of the water resource;
(h) investments already made and to be made by the water user in respect of the water use
in question;
(i) the strategic importance of the water use to be authorised;
(j) the quality of water in the water resource which may be required for the Reserve and for
meeting international obligations; and
(k) the probable duration of any undertaking for which a water use is to be authorised.’

[75] In short, the appellants’ case is that the evidence establishes that the
proposed mine area falls within a strategic water source area and a river
freshwater ecosystem priority area, and that the Tribunal erred in failing to take
these factors into account. This is not a question of law.

26


[76] There is no doubt as to the nature and ambit of s 27(1) of the NWA. 27 On
its plain wording, the factors listed in that provision do not constitute a closed list.
The appellants’ complaint is that the Tribunal erred in failing to take into account
certain reports and the evidence they presented. It does not raise a question of
law. In any event, the Tribunal found that Ms Colvin did not at all consider the
water use licence issued to the respondent, and that her evidence was ‘merely
providing a context’. Dr Le Maitre, the Tribunal said, conceded that although it
is not recommended, coal mining is not incompatible with the Strategic Water
Source Areas Report.

[77] These are not questions of law. Therefore, the appeal cannot succeed on
this ground.

Ground 2: the proper construction of s 24 of the NWA
[78] Section 24 provides:
‘A licence may be granted to use water found underground on land not owned by the applicant
if the owner of the land consents or if there is good reason to do so.’

[79] As noted by the Tribunal, the appellants raised the failure to obtain the
consent of the landowner of the farm Zoetfontein , midway through the hearing.
Although the proper construction of s 24 of the NWA is a question of law, the
appellants’ real complaint is that consent was not given. Their submission that
there must be a ‘public’ reason to dispense with consent is both strained and
untenable.

[80] It is settled that legislation must be interpreted having regard to its
language, context and purpose.28 As was held in Hyundai Motor Distributors,29 a

27 Magmoed fn 22 at 811C.
28 Endumeni fn 16 para 18.
29 Investigating Directorate: Serious Economic Offences and Others v Hyundai Motor Distributors (Pty) Ltd and
Others: In Re Hyundai Motor Distributors (Pty) Ltd and Others v Smit NO and Others 2001 (1) SA 545 (CC)

27


statute must be construed in a manner that avoids limiting or infringing a right in
the Bill of Rights, where this is possible.

[81] Section 1(3) of the NWA states:
‘When interpreting a provision of this Act, any reasonable interpretation which is consistent
with the purpose of this Act as stated in section 2, must be preferred over any alternative
interpretation which is inconsistent with that purpose.’

[82] Section 2 sets out the purpose of the NWA as follows:
‘The purpose of this Act is to ensure that the nation's water resources are protected, used,
developed, conserved, managed and controlled in ways which take into account amongst other
factors-
(a) meeting the basic human needs of present and future generations;
(b) promoting equitable access to water;
(c) redressing the results of past racial and gender discrimination;
(d) promoting the efficient, sustainable and beneficial use of water in the public interest;
(e) facilitating social and economic development;
(f) providing for growing demand for water use;
(g) protecting aquatic and associated ecosystems and their biological diversity;
(h) reducing and preventing pollution and degradation of water resources;
(i) meeting international obligations;
(j) promoting dam safety;
(k) managing floods and droughts,
and for achieving this purpose, to establish suitable institutions and to ensure that they have
appropriate community, racial and gender representation.’

[83] The appellants submit that the purpose of the requirement of consent by
the landowner is to ensure that the issuance of a licence to water user s does not
deprive the owners of land of the right to full enjoyment of their land; and that an
applicant bears the onus to show that consent has been obtained . Then it is

para 23; Wary Holdings (Pty) Ltd v Stalwo (Pty) Ltd and Another [2008] ZACC 12; 2009 (1) SA 337 (CC); 2008
(11) BCLR 1123 (CC) para 46.

28


submitted that the requirement in s 24 that there must be a good reason to issue a
licence, means a good public reason, ie only if the water use is for a public
purpose or one in the public interest; and not for ‘a private profit-making mining
operation’.

[84] Section 24 of the NWA on its plain language, empowers a decision-maker
to grant a licence to use underground water, either where the relevant landowner
consents, or there is a good reason to do so. The jurisdictional requirement of a
good reason, itself constitutes a limitation of the right to ownership in s 25 of the
Constitution. Therefore, the appellants’ reliance on Hyundai Motor Distributors
is misplaced. This limitation is hardly surprising, given that the government is the
public trustee of the nation’s water resources, with the power to regulate the use
and control of all water in the Republic .30 These powers cannot be impeded by
landowners withholding consent for a water use on, over or under their land. And
the appellants do not suggest that s 24 is unconstitutional.

[85] In addition, the appellants wrench the requirement of a good reason in s 24
from its context. The section does not require a good public reason. Had that been
a requirement, Parliament could have said so. Neither can the fact it should be a
public reason , be implied. It is trite that words may be implied in a statutory
provision only if effect cannot be given to the statute as it stands.31

[86] The appellants’ construction is also at odds with the purposes of the NWA
contained in s 2. These include ensuring that the nation’s water resources are
protected, used, developed, conserved, managed and controlled , taking into
account not only the promotion of efficient, sustainable and beneficial use of
water in the public interest, but also the facilitation of social and economic
development.

30 Section 3(1) and (3) of the NWA.
31 Rennie NO v Gordon and Another NNO 1988 (1) SA 1 (A) at 22E-F, affirmed in Bernstein and Others v Bester

and Others NNO 1996 (2) SA 751 (CC) para 62.

29


[87] So, the only question is whether there was a good reason to grant the water
use licence in the circumstances. Here too, the appellants misconstrue s 24. The
notice of appeal states that the concept good reason requires ‘that the water use
in question is so compelling that it is in the public interest to override the
landowner’s statutory and constitutional rights’. But that is not so. Rather, ‘good
reason’ means no more than that the decision to grant a licence to use
underground water must have a sound basis, in the light of the purposes of the
NWA, and the particular facts and circumstances of the case.

[88] Applied to this case, the Tribunal considered the following facts. The water
uses that would impact the farm do not involve s urface activities but relate to
s 21(c) and (i) of the NWA, resulting from underground mining and voids under
the farm. During the public participation process in 2015, the second respondent
addressed a letter to the director of the company that owns the farm Zoetfontein,
informing him of the application for the licence and inviting him to discuss the
issue. Thereafter, the second respondent sent two further emails to the director,
in which it confirmed that it had left a pack of documents for him to consider;
that he received the documents; and that he was telephoned a few times to set up
a meeting. The landowner did not respond to these letters and emails. The second
respondent notified the DG accordingly.

[89] The Tribunal concluded that on its own, s 24 was not decisive of the grant
of a water use licence . It held that there was good reason to dispense with the
landowner’s consent, having regard to the s 27(1) factors it had considered; the
socio-economic considerations; and its assessment of the impact of the water use
on wetlands, the farm Zoetfontein, and other affected properties.

[90] In these circumstances, it cannot be said that there was no good reason to

[90] In these circumstances, it cannot be said that there was no good reason to
issue the water use licence as contemplated in s 24 of the NWA. Consequently,
the appeal on this ground also fails.

30


Ground 3: No provision for post-closure treatment of contaminated water
[91] In sum, this ground is set out in the notice of appeal as follows. The
Tribunal erred in finding that the water use licence provides for the treatment of
contaminated water after closure of the mine, because the second respondent is
required to prepare a closure plan before the end of mining and would then have
to apply for amendments to the licence to implement closure operations, in terms
of ss 49 and 52 of the NWA; and the licence provides for review of its conditions
every two years. The appellants say that post-closure treatment of contaminated
water could not be provided for in the licence, since it is valid for only 15 years
and there will be decant of contaminated water into wetlands and streams in 60-
75 years’ time. Then it is said that the questions of law raised by this ground are
whether the Tribunal correctly interpreted ss 49, 52 and 28(2) of the NWA, and
the conditions of the water use licence.

[92] This appeal ground also raises questions of fact dressed-up as questions of
law. It appears from the Tribunal’s findings that there is no reliance on either s 28
or s 49 for its conclusions on post-closure treatment of contaminated water.32 This
is unsurprising, since the appellants’ case before the Tribunal as set out in its
amplified grounds of appeal was ‘the failure of the DG to authorise two water
uses associated with the closure of the mine, namely the discharging of water
containing waste into a water resource (s 21 (f) of the NWA), and disposing of
waste in a manner which may detrimentally impact on a water resource (s 21 (g)
of the NWA) (new second ground of appeal)’. This is not a question of law.

[93] As to this complaint, the Tribunal held that the evidence showed that there
was neither data nor accurate information on the nature and volumes of water to
be treated and disposed of post-closure of the mine. However, the licence contains

be treated and disposed of post-closure of the mine. However, the licence contains

32 Section 28 of the NWA sets out the essential requirements of licences, namely that a licence must specify the
following details regarding its issuance: the licensee, the water use, the property area, the conditions, the licence
period which may not exceed 40 years, and the review periods during which the licence may be reviewed, which
must be at intervals of not more than five years. Section 49 authorises the review and amendment of a licence by
a responsible authority.

31


conditions which require the second respondent to prepare a closure plan five
years before the end of mining , when details of such volumes and flows would
become clear and guide appropriate conditions.

[94] Having regard to the grounds of appeal, the Tribunal concluded that there
were three broad issues that had to be determined, one of which was the concern
relating to post -mining treatment of contaminated water. It found that once
mining stops, water is likely to fill the void left be hind and eventually cause the
underground levels to rebound and decant onto the surface. On this issue there
was a dispute as to whether sufficient provision was made for a water treatment
plant post-closure; and whether financial provision was made to dea l with this
long-term impact.

[95] The Tribunal rejected the claim in the GCS Review and the evidence by
the appellants’ expert that no provision was made for a water treatment plant post-
mining, as being ‘clearly unfounded’. This plainly, is a question of fact. The
Tribunal stated that the criticism in the GCS Review of the Delta H report, ‘was
demonstrated to be scientifically unsound’.

[96] As regards financial provision for the operation of the plant after the
completion of mining – also a question of fact – the Tribunal found that this
depended on the nature and volume s of the water to be treated and disposed of
post-closure of the mine. It accepted the evidence of Prof Witthüser who used
modelling to simulate decant rates; and testified that a more confident prediction
of post-closure decant rates and quality could only be achieved based on site -
specific monitoring and data gathered during the life of the mine. Prof Witthüser
concluded:
‘The confidence in predicting mining inflows and plume migration risks for later years or for
the mine development can significantly be improved by observation data from earlier years and
subsequent updates of the groundwater model.’

32


[97] This evidence went unchallenged. It is thus not surprising that it was never
put to Prof Witthüser nor Mr Smit in cross-examination, that the DG should have
made financial provision for the post-closure treatment of contaminated water but
failed to do so. In any event, how was this supposed to be done in the light of the
uncertainty regarding the nature and volumes of the water to be treated, and then,
as the appellants would have it, for post-closure contaminated decant in 65 -70
years’ time? It is precisely because of this uncertainty – yet again, a question of
fact – that the Tribunal imposed the conditions that the second respondent provide
proof of financial provision made in terms of legislation other than the NWA; and
that within 60 days of the Tribunal’s decision and before mining commences, the
DG must review the adequacy of budgetary provision and if necessary , require
further financial security in terms of s 30 of the NWA.

[98] The appellants’ challenge to Prof Witthüser’s evidence was that the DG
should not have issued the water use licence with a Class 1 classification of the
potential post-closure impacts of decant, namely low confidence in terms of the
Australian Groundwater Modelling Guidelines, because the mine is located in ‘a
highly sensitive area from a water point of view’. This challenge (which is also a
question of fact) the Tribunal found, was not only scientifically unsubstantiated,
but was also not established in evidence. It accepted Prof Witthüser’s Class 1
classification and his evidence that the confidence in predicted mine inflows
could significantly be improved by observation data from the earlier years of
mining operations and subsequent updates of the groundwater model.

[99] On this issue the Tribunal came to the following conclusion:
‘Having considered the evidence of Dr Witthüser on the interpretation and application of the
Australian Groundwater Modelling Guideline (which is the only accepted international

Australian Groundwater Modelling Guideline (which is the only accepted international
standard used to model groundwater flows), as well as noting that GCS Review was entirely
based on a desktop review of selected aspects of the Delta -H Reports, these arguments are
bereft of scientific substance on this aspect. Not in so many words, counsel for the Appellants

33


seemed to concede the factual and scientific in -exactitude of the GCS approach and
conclusions.’

[100] Finally on this ground, the appellants ignore the evidence. First, Mr Smit
testified that he was 95% confident in the steps taken to manage the risk of
contaminated water escaping the mitigation measures put in place and caus ing
pollution; that environmental management in relation to mining had improved;
and that the pillar designs in current mines are such that they do not allow a mine
to cave in, thereby causing a greater ingress of water. The appellants’ submission
that this evidence is worthless, because there is ‘no concrete evidence about future
management arrangements’, raises issues of fact, not law.

[101] Second, the Tribunal found, as a fact, that the MPRDA and the NEMA
require financial provisioning for post -closure rehabilitation of the mining area ;
and that the proposed water treatment plant to be used during mining operations
is adequate, given its modularised design . This makes the plant flexible and
adaptable to changes in the volumes of water to be treated, and to future
technological advances. The appellants’ own witness, Mr Johnstone, conceded
that the modularised water treatment plant was a reasonable solution for the
treatment of contaminated water . He stated that financial provision should be
made for water treatment, and ‘[w]hether it stays with the Department of Minerals
and Energy or the Department of Water Affairs, does not matter’.

[102] For the above reasons, the appellants’ challenge to the Tribunal’s decision
does not constitute a question of law. It follows that on this ground also, the
appeal cannot succeed.

Ground 4: failure to apply the precautionary principle
[103] Before the Tribunal, the appellants’ ground of appeal on this issue was that
the precautionary principle was significant to the decision to issue the water use

34


licence, because of fundamental deficiencies in the second respondent’s specialist
studies. They also alleged that the principle should have been applied , because
the DG imposed conditions in the licence requiring the second respondent to
update earlier information and application forms; and a written motivation that
the ecological risks and impacts of watercourses are minimal. However, there are
no such conditions in the licence.

[104] In this regard, the amplified grounds of appeal state:
‘An understanding of the groundwater impacts of the proposed colliery is the keystone of any
meaningful assessment of the surface water, wetland and biodiversity -related impacts of the
proposed colliery. This is because the most significant impacts of the proposed co lliery are,
and are related to, the dewatering of the groundwater aquifers below and in the vicinity of the
proposed mining area and the decant of contaminated groundwater and A MD [acid mine
drainage] from the underground mine workings. The Delta H groundwater assessment is Atha’s
most recent and sophisticated groundwater study. However, as explained extensively in the
revised GCS review, the results (predictions) of the Delta H groundwater model are of a low
confidence … .’

[105] Given that t he groundwater model in the Delta H report is of a low
confidence, the appellants stated in their appeal grounds, it is best suited for
managing low value resources, in terms of the Australian groundwater modelling
guidelines; and that according to the GCS review,
‘it is evident that the area of and surrounding the proposed mining activity is a moderate to
high value groundwater-dependent ecosystem. In light of this, a Class 3 model with a high level
of confidence is required before a decision may be taken which will affect the resource.’

[106] The appellants went on to say:
‘GCS states unequivocally that, due to the low confidence in the Delta H groundwater model,

‘GCS states unequivocally that, due to the low confidence in the Delta H groundwater model,
it “should not be used in its current state for any decision-making”.’

[107] However, in the notice of appeal in the High Court, the appellants’ case
was transmogrified and dressed-up as a question of law. The notice states that the

35


Tribunal ‘erred in its interpretation and application’ of s 2(4)(a) of the NEMA,
including the precautionary principle. The appellants contend that the Tribunal
incorrectly interpreted the words, ‘current knowledge about the consequences of
actions and decisions’ ; and the words, ‘limits of current knowledge about the
consequences of actions and decisions’, in s 2(4)(a)(vii) of the NEMA; and that
it interpreted this provision as casting an onus of proof or evidential burden on
the appellants to prove (a) a threat of irreversible environmental damage and (b)
scientific uncertainty as to the environmental damage, which onus or evidential
burden rests on the developer.33

[108] The notice of appeal also states that the Tribunal incorrectly found that the
conditions for the application of the precautionary principle in the NEMA were
not present and that it failed to apply the ‘risk averse and cautious approach’,
contemplated in s 2(4) (a)(vii). It ought to have found that the necessary
conditions for the application of the precautionary principle had been established,
which militated against the grant of the water use licence.

[109] This change of tack is impermissible. The challenge to the DG’s decision
before the Tribunal, was squarely founded on ‘fundamental deficiencies in the
specialist studies’ which, the appellants s aid, ‘form the backbone’ of the
application for the water use licence. These are questions of fact.

[110] In dismissing this ground of appeal, the Tribunal said:
‘Our view is also that the precautionary principle should be considered together with other
principles in section 2(4) of the NEMA, especially of the principles of sustainable development.
The principle does not require unequivocal scientific certainty before any affirmative decisions
are taken, otherwise no development activities would be authori sed. Indeed, the Appellants

33 Section 2(4)(a)(vii) of the NEMA provides:

33 Section 2(4)(a)(vii) of the NEMA provides:
‘Sustainable development requires the consideration of all relevant factors including the following:
. . .
(vii) that a risk-averse and cautious approach is applied, which takes into account the limits of current knowledge
about the consequences of decisions and actions.’

36


themselves repeatedly emphasised that their case was not that “ as a matter of law there is an
absolute prohibition on the authorisation such as this ever being granted.”34 The perception of
risk and uncertainty advanced by the appellants are grounded in the GCS Review findings and
other expert reviews,35 which have been demonstrated in evidence to be shallow and lacking
by way of ground truthing . Equally, however, the Respondents’ scientific evidence does not,
and cannot, provide absolute levels of comfort – the threshold is what risk is tolerable and
whether reasonable measures are in place to manage the identified impacts.’

[111] It follows that the appellants challenge to the Tribunal’s decision based on
the precautionary principle raises purely questions of fact. Contrary to the
submission in their heads of argument , they asked the High Court to revisit the
factual findings made by the Tribunal, in the light of the GCS Review. Likewise,
the argument that the Tribunal ‘failed to properly apply the environmental
principles’36 – an attack no longer confined to the precautionary principle – given
its finding that the second respondent’s scientific evidence did not provide
absolute levels of comfort in relation to tolerable risks, and whether the measures
proposed to manage those risks are reasonable, are questions of fact. That ought
to have been the end of the appellants’ case on this ground in the High Court.

[112] Even the appellants’ challenge that the Tribunal committed ‘an error of law
based on the application of the environmental principles’, raises questions of fact
dressed-up as a question of law. That challenge is founded on ‘the contrasting
evidence of Dr Le Maitre and Prof Witthüser; the Tribunal’s factual findings that
the decant was manageable, based on Mr Smit’s evidence; and its acceptance of
Prof Witthüser’s evidence that the confidence in predicted mine inflows could
significantly be improved by observation data obtained during mining operations.

significantly be improved by observation data obtained during mining operations.
On th ese aspects the Tribunal found, as a fact, that the mitigation measures
proposed by the second respondent (which were revised on various occasions
after the DG raised concerns ) ‘are reasonable and technically adequate to deal

34 Emphasis in the original.
35 Emphasis added.
36 Emphasis added.

37


with the impacts of dewatering, decant, and management of wastewater from the
mine’.

[113] In this case, the precautionary principle itself and its scope are not in issue.
What is in issue is the factual foundation for the application of the principle. That
is a question of fact.37 For these reasons this ground of appeal also fails.

Costs
[114] The appellants submit that they are insulated from costs orders by virtue of
two considerations concerning costs awards in constitutional litigation : (i) the
Biowatch principle, namely that the High Court proceedings were instituted to
vindicate environmental rights under s 24 of the Constitution, which are genuine
and not frivolous; 38 and (ii) they acted reasonabl y in the protection of the
environment, as contemplated in s 32(2) of the NEMA.39 They also contend that
the High Court’s finding in the first part of its judgment that public interest law
centres act in the public interest when they facilitate the enforcement of rights
under section 38 (d) of the Constitution , precludes a finding of frivolity or
vexatiousness against them. However, as stated above, this finding was made in
an entirely different context and does not assist the appellants.

[115] Neither does Biowatch assist the appellants. The Constitutional Court, after
stating the general rule in constitutional litigation that an unsuccessful litigant
ought not to be ordered to pay costs to the State, should not be departed from
simply because that party is able to pay costs, went on to say:40

37 Magmoed fn 22 at 811C.
38 Biowatch Trust v Registrar, Genetic Resources, and Others [2009] ZACC 14; 2009 (6) SA 232 (CC); 2009 (10)
BCLR 1014 (CC) (Biowatch) para 28.
39 Section 32(2) of the NEMA provides:
‘A court may decide not to award costs against a person who, or group of persons which, fails to secure the relief
sought 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, if the court is of the opinion that
the person or group of persons acted reasonably out of a concern for the public interest or in the interest of
protecting the environment and had made due efforts to use other means reasonably available for obtaining the
relief sought.’
40 Biowatch fn 38 para 80.

38


‘Conversely, a party should not get a privileged status simply because it is acting in the public
interest or happens to be indigent. It should be held to the same standards of conduct as any
other party, particularly if it has had legal representation. This means it should not be
immunised from appropriate sanctions if its conduct has been vexatious, frivolous,
professionally unbecoming or in any other similar way abusive of the processes of the court.’

[116] That is the case here. The appellants, who throughout have been
represented by senior and junior counsel, vexatiously pursued the s 149(1) appeal,
which has no merit. This, after they had enjoyed the benefit of an appeal against
the DG’s decision to issue the water use licence , in the form of a complete
rehearing before the Tribunal.

[117] In this regard, the description of a ‘vexatious proceeding’ by Lord Bingham
CJ in Attorney-General v Barker,41 is instructive:
‘The hallmark of a vexatious proceeding is in my judgment that it has little or no basis in law
(or at least no discernible basis); that whatever the intention of the proceeding may be, its effect
is to subject the defendant to inconvenience, harassment and exp ense out of all proportion to
any gain likely to accrue to the claimant; and that it involves an abuse of the process of the
court, meaning by that a use of the court process for a purpose or in a way which is significantly
different from the ordinary and proper use of the court process.’

[118] The appeal lodged by the appellants ha s little or no basis in law . A s
demonstrated above, it does not raise a question of law . As to the proper
construction of s 24 of the NWA, the appellants’ real complaint is the absence of
proof of the landowner’s consent . This challenge was also opportunistic: the
appellants knew or must have known that the licence was issued subject to the
condition that the relevant landowner’s consent had to be obtained before mining
commences.

commences.

[119] In their notice of appeal, the appellants raised no less than 12 grounds of
appeal, dressed-up as questions of law. A recurring theme in the notice is whether,

41 Attorney-General v Barker [2000] 2 WLUK 602; [2000] 1 FLR 759 para 19.

39


what in truth is a question of fact, that question ‘is a relevant factor in in the
opening part of s 27(1) or s 27(1) (a), (b), (c), (d), (e), (f), (g), (i) or (j) of the
NWA’, in order to disguise it as a question of law. As stated, t he appellants
persisted with only five grounds of appeal in the High Court . In this Court they
advanced only four out of the 12 grounds of appeal , which have been found to
lack merit. What is more, in advancing these grounds, they ignored the evidence
and sought to evade the bases on which they had challenged the impugned
decision before the Tribunal. And the ground that the High Court was biased, was
opportunistic and stillborn.

[120] The appellants lodged the s 149(1) appeal despite a review application that
they launched against t he same parties, which is pending in the Pretoria High
Court. In the review they challenge the DG’s decision to issue the water u se
licence on the same factual grounds; and the second respondent is obliged to
oppose that application if it wants to retain its water use licence .42 Public funds
will again be expended in the DG’s opposition to that application.

[121] The appellants lodged this appeal regardless of the consequences : the
inconvenience to and exorbitant costs that would be incurred by the respondents
(the appellants filed a record consisting of a core volume and 26 volumes
comprising more than 5000 pages ); and in particular, the harassment of the
second respondent , an innocent party, which has been dragged to court and
opposed the appeal in order to preserve its licence.

[122] In 2011 the second respondent was invited to invest in South Africa. It has
made an investment of US$ 40 million in equity and prospecting rights to engage
in coal mining. It has spent US$ 61 million solely on specialist studies, to secure
the necessary authorisations. More than ten years later no mining has started and

the necessary authorisations. More than ten years later no mining has started and

42 Endangered Wildlife Trust and Others v Director -General Department of Water and Sanitation and Others
(Review of Water Tribunal’s decision ), Pretoria High Court, Case no 86261/2019 (Appeal No WT 03/17/MP)
[2019] ZAWT 3 (22 May 2019).

40


the second respondent has not realised any return on its investment. The
application for the water use licence alone took some four years , given the
specialist studies required. Concerning costs, the appellants pay no regard to ‘the
investments already made and to be made by the water user in respect of the water
use in question’, as envisaged in s 27(1)(h) of the NWA.

[123] The uncontradicted evidence of Mr Triparthi is that prior to the declaration
of the Mabola Protected Environment, the second respondent had done
environmental due diligence before acquiring the prospecting right (which had
been in continuous existence for 20 years), because of historical mining in the
entire area. He said that there were consultations between the second respondent,
the relevant member of the Executive Council , the M pumalanga Tourism and
Parks Agency and various non-governmental organisations, including the World
Wildlife Fund . The outcome of these consultations was that mining and
environmental protection could coexist in the area . However, once the relevant
area was declared a protected environment, the entire narrative changed.

[124] In the result the applicants , together with other environmental
organisations, launched no less than five applications against the second
respondent, to prevent mining.43 These applications include proceedings by the
appellants to review and set aside: (i) the Tribunal’s decision to dismiss the appeal
against the issuance of the water use licence;44 and (ii) the Municipality’s decision
granting a change of land use from agricultural to mining and ancillary
purposes.45 In these circumstances, the appellants’ submission that the second

43 Earthlife Africa Johannesburg and Others v Minister of Mineral Resources and Others , Gauteng Division of
the High Court, Pretoria, Case no 73278/2015; Mining and Environmental Justice Community Network of South

Africa and Others v Minister of Environmental Affairs and Others [2018] ZAGPPHC 807; [2019] 1 All SA 491
(GP); Endangered Wildlife Trust and Another v Director General: Department of Water and Sanitation (Acting)
and Anothe r [2023] ZAGPPHC 310; A155/2019 (10 May 2023); Endangered Wildlife Trust and Others v
Director-General Department of Water and Sanitation and Others (Review of Water Tribunal’s decision), Pretoria
High Court, Case no 86261/2019 (Appeal No WT 03/17/MP) [2019] ZAWT 3 (22 May 2019) ; Mining and
Environmental Justice Community Network of South Africa and Others v Gert Sibande Joint Municipal Planning
Tribunal and Others (Gert Sibande) Mpumalanga Division (Middelburg Local Seat) High Court (1344/2020);
[2024] ZAMPMHC 7 (22 January 2024).
44 Review of Water Tribunal’s decision fn 43.
45 Gert Sibande fn 43.

41


respondent should be denied its costs, is untenable.46 Opponents who are harassed
by the worry and costs of vexatious litigation, which in most cases are exorbitant,
are entitled to protection.

[125] Another factor regarding costs, is that the members of the local community,
who are in dire need of upliftment and jobs and support the proposed mine, have
been prejudiced by the appellants’ conduct in launching this appeal. The Tribunal
observed that the appellants were preoccupied with the environmental impacts of
the mine, to the virtual exclusion of social and economic impacts of sustainable
development. They presented no site-specific information (positive or negative)
relating to the socio-economic impacts of the water uses if authorised, or of the
failure to authorise the water uses , as contemplated in s 27(1)(d) of the NWA .
Mr Triparthi’s evidence that if mining commences, there would be at least R700
million of capital expenditure over a period of three years; that it would generate
employment for more than 500 people; and that it would stimulate the local
economy and small and medium enterprises, was not challenged. And Mr Nene
testified that unlike the CER, the community ‘lack[s] money to fight in the same
system, the same courts’.

[126] There are further considerations that justify a costs award against the
appellants. The respondents ask for an order that the appellants pay the costs
incurred in the High Court and on appeal. The DG’s costs are paid out of public
funds, ultimately by taxp ayers. In addition to an unmeritorious appeal and the
vexing of the second respondent, scarce and valuable judicial resources have been
wasted on a misconceived appeal , to the detriment of other litigants with cases
which have real merit. All of this, in the specific circumstances of this case,
constitute an abuse of the court process. Judicial resources in this country are

46 South Durban Community Environmental Alliance v MEC for Economic Development, Tourism and

46 South Durban Community Environmental Alliance v MEC for Economic Development, Tourism and
Environmental Affairs: KwaZulu-Natal Provincial Government and Another [2020] ZASCA 39; [2020] 2 All SA
713 (SCA); 2020 (7) BCLR 789 (SCA); 2020 (4) SA 453 (SCA) para 51.

42


barely sufficient to afford justice without unreasonable delay in deserving cases,
and should not be wasted on misconceived litigation. And these resources will
again be utilised in the hearing of the appellants’ review application of the
Tribunal’s decision in the Pretoria High Court.

[127] In all of this, the appellants ask this Court to make an order overturning the
decisions of the High Court and the Tribunal and to replace them with a decision
refusing the water use licence. Given the expertise of the Tribunal and the nature
of the matter, this submission cannot seriously be made.

[128] There comes a time when it is right for a court to hold an organisation
which brings vexatious proceedings and claims to act in the interests of the public
and the environment, to the same standards of conduct as any other litigant. For
all of the above reasons, the appellants have not shown why they should not be
held to these standards. The appeal is dismissed with costs, including the costs of
two counsel where so employed.



____________________
A SCHIPPERS
JUDGE OF APPEAL

43


Appearances:

For appellants: A Dodson SC
Instructed by: Centre for Environmental Rights, Cape Town
Phatshoane Henney Attorneys, Bloemfontein

For first respondent: M Mphaga SC with M Mathaphuna
Instructed by: The State Attorney, Pretoria
The State Attorney, Bloemfontein

For second respondent: R Zimerman
Instructed by: Taitz & Skikne Attorneys, Johannesburg
EG Cooper Majiedt Inc Attorneys, Bloemfontein