Indian company Atha-Africa Ventures is taking its fight to establish a coal mine within a strategic water source area to the Constitutional Court.
The company wants to mine coal at the Mabola Protected Environment near the small town of Wakkerstroom in Mpumalanga.
Although the mine obtained its mining permits from various government departments last year, its project has been stalled by environmental organisations, which have successfully taken the company to the Pretoria High Court to set aside its permits because of concerns about the damage the establishment of Yzermyn Coal Mine would have on the strategic water source.
The Centre for Environmental Rights (CER), which represents eight environmental organisations, argued that the mine would be built on an area that is a source for the Usuthu, Tugela, Vaal and Pongola rivers. If endangered by acidic mine water drainage, they warned, the availability of clean water for communities would be compromised.
The CER argued that various departments – such as the Mpumalanga agriculture and environment department, the national environment affairs department and the mineral resources department – were wrong to give Atha-Africa mining authorisation on Mabola, which was declared a protected area in 2014.
The company has tried appealing the high court ruling, but failed. Its last failed attempt was petitioning the president of the Supreme Court of Appeal, Judge Mandisa Maya, this year.
Atha-Africa Ventures said it filed papers in the Constitutional Court last week because its failed appeals in the Supreme Court of Appeal raised “valid constitutional concerns”.
“As a clarification,” the company said, “the original high court judgment was passed against the ministers of environment and minerals, respectively, and Atha-Africa Ventures had not contested the mainrelief of remittal.
“Atha-Africa Ventures had contested only the ancillary reliefs and will continue to do so since the ancillary reliefs granted by the high court raise valid constitutional concerns.”
The CER’s attorney, Catherine Horsfield, said that she had been instructed by her clients to oppose Atha-Africa’s Constitutional Court challenge and would file papers in the next few weeks.
“It’s for the same reason we opposed their other appeals. There are no exceptional circumstances that Atha-Africa raises that suggest it has a good prospect of success. We will continue to defend the judgment we obtained in the Pretoria High Court because of the strategic importance of the area from a water point of view. Our clients are adamant that coal mining should not take place in strategic water source areas,” Horsfield said.
Atha-Africa is in a partnership with the Bashubile Trust – two of its trustees, Sizwe Zuma and Vincent Zuma – are nephews of former president Jacob Zuma. The third trustee is Thabiso Mpofu.
The company aimed to create 500 permanent and 2 000 indirect jobs. Local organisations such as the Voice Community Representative Council in Pixley Ka Seme Local Municipality in Volksrust had accused the environmental organisations of being racists because the investment would uplift poor black people.
According to profile data from Wazimap, the municipality is poverty-stricken, and only 32.5% of its residents are employed.
Timeline of events
2017: Centre for Environmental Rights (CER) takes on Atha-Africa after hearing of its intention to establish the Yzermyn Coal Mine, and brings an application in the Pretoria High Court to stop the mine.
November: The Pretoria High Court sets aside decisions by former mineral resources minister Mosebenzi Zwane and the late environmental affairs minister Edna Molewa to grant Atha-Africa Ventures mining permits.
January: The Pretoria High Court refuses Atha-Africa permission to appeal and awards costs in favour of the CER.
April: The Supreme Court of Appeal refuses Atha-Africa’s application to appeal.
June: The president of the Supreme Court of Appeal, Judge Mandisa Maya, turns down Atha-Africa’s petition to appeal against the Pretoria High Court judgment.
July: Atha-Africa files papers in the Constitutional Court.