Constitutional Court dismisses coal-mining company’s appeal bid

“Impact of coal mining and burning on global warming is irrefutable” says environmental activist

By John Yeld

17 November 2021

The Constitutional Court has dismissed a second attempt by Uthaka Energy (formerly known as Atha-Africa Ventures) to have it intervene in a lengthy legal battle over its plan to mine coal in a protected area in Mpumalanga. Archive photo: Ashraf Hendricks

• The Constitutional Court has for a second time stopped an attempt by Uthaka Energy (Pty) Ltd (formerly known as Atha-Africa Ventures) to have it intervene in a lengthy legal battle over a proposed underground mine in Mpumalanga.
• The court dismissed the company’s application for leave to appeal an interdict granted in the Pretoria High Court which prevents it from most mining operations at the site until six other contested cases are resolved.
• The legal battle to stop the mine has been waged for six years.
• Mabola is one of only 22 protected areas that together supply more than half of the country’s freshwater.

The Constitutional Court has for a second time stopped an attempt by a coal-mining company to have it intervene in a lengthy legal battle over a proposed underground mine in the critical wetland water conservation area of Mabola, Mpumalanga.

Uthaka Energy (Pty) Ltd (formerly known as Atha-Africa Ventures) is a local subsidiary of India-based mining and minerals company Atha Group, which had planned to start operations at its Yzermyn underground coal mine at Mabola earlier this year.

Earlier this month, the Constitutional Court dismissed an application by Uthaka Energy for leave to appeal an interdict order granted in the Pretoria High Court in March.

The interdict prohibits the company from starting any mining at its proposed Yzermyn coal mine until six High Court ongoing challenges to various approvals for the mine already granted by the authorities have been resolved. The company is currently only allowed to do survey pegging of the mining area and an associated wetland.

The interdict application was brought by a coalition of eight civil society and environmental organisations that have been opposing the mine since 2015.

The proposed mine lies within a Strategic Water Source Area in the grasslands and wetlands of the Wakkerstroom area, one of only 22 areas that together produce more than 50% of South Africa’s freshwater.

Until January 2021, the proposed mining area was also included within the 8,772 hectare Mabola Protected Environment, a protected area declared under the Protected Areas Act in 2014.

However, Mpumalanga environment MEC Vusi Shongwe in January revoked Mabola’s protected area status, effectively allowing the proposed coal mine to proceed without the joint ministerial permissions. This is one of the six authorisations currently being challenged by the coalition.

In 2019, the company approached the Constitutional Court for the first time with an application for leave to appeal. This was after the Supreme Court of Appeal (SCA) did not entertain its appeal against an adverse judgment by a lower court that had blocked the mining proposal on grounds relating to the protected area status.

The court’s latest equally short order on 4 November 2021, stated: “The Constitutional Court has considered the application for leave to appeal. It has concluded that the application should be dismissed as it is not in the interests of justice for this Court to entertain it at this stage.”

The six High Court cases that still need to be resolved before the interdict can be lifted are:

• A review of the Mpumalanga MEC’s decision to revoke the protected area status of the four Mabola properties that Uthaka Energy proposes to mine;
• A review of the environmental authorisation for the project issued by the Mpumalanga Environment Department;
• A review of the granting of the water use licence for the mine;
• An appeal against a decision by the Water Tribunal to dismiss appeals against the granting of the water use licence;
• A review of the land use planning approval by the local authority; and
• A review of the granting of the mining right.

The court’s latest decision has been welcomed by members of the coalition opposing the mine. One of them is groundWork, a KwaZulu-Natal-based non-profit environmental justice service and developmental organisation. Its director Bobby Peek said: “We welcome the Constitutional Court decision as an important local acknowledgement of the need to pause development of new coal mining, particularly in our strategic water source areas, when the impact of coal mining and burning on global warming is irrefutable. Our focus, particularly here in Africa, needs to be on building our resilience to climate change, not making it worse.”

The coalition members include the Mining and Environmental Justice Communities Network of South Africa, BirdLife South Africa, the Endangered Wildlife Trust, the Federation for a Sustainable Environment, the Association for Water and Rural Development (AWARD) and the Bench Marks Foundation, and they are represented by the Centre for Environmental Rights.

In response to questions over Uthaka Energy this week, the Atha Group said that it had divested its interest in Uthaka Energy Proprietary Limited, South Africa as of 25 October 2021.

“As such, Atha Group is neither a shareholder nor an interested party in the outcome of the case. The divestment was necessary to quell the xenophobic attitude of a section of South African media and NGOs against Indian foreign investment into South Africa. Therefore these opportunistic and voyeurish questions or comments are best commented upon by the new controlling South African shareholders of Uthaka Energy.”