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High Court refuses mining company’s leave to appeal in the Mabola case

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High Court refuses mining company’s leave to appeal in the Mabola case

22nd January 2019

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In another victory for the civil society coalition defending a Mpumalanga strategic water source area, the North Gauteng High Court today refused mining company Atha Africa leave to appeal the court’s decision to set aside permissions for a new coal mine inside a declared protected environment.

In November 2018, the High Court set aside the 2016 decisions of former Mineral Resources Minister Zwane and the late Environmental Affairs Minister Molewa to permit a new coal mine to be developed in the Mabola Protected Environment near Wakkerstroom, Mpumalanga.

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The Mabola Protected Environment was declared under the Protected Areas Act in 2014 by the Mpumalanga provincial government as part of the declaration of more than 70 000 hectares of protected area in the Mpumalanga grasslands. This followed years of extensive research and planning by a number of government agencies, including the Department of Environmental Affairs, the South African National Biodiversity Institute and the Mpumalanga Tourism & Parks Agency.

In 2016, without public consultation and without notice to the coalition, the two Ministers gave their permission for a large, 15-year coal mine to be built inside the Mabola Protected Environment.

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In November 2018, the Court set aside the permission and referred the decision back to the two Ministers for reconsideration on the basis that the Ministers did not take their decisions in an open and transparent manner or in a manner that promoted public participation, and that the decisions were therefore procedurally unfair. The High Court also ordered the Ministers and MEC to pay the coalition’s legal costs on an attorney and client (punitive) scale.

Today, the court heard Atha Africa’s application for leave to appeal the November decision to a full bench of the High Court or the Supreme Court of Appeal. The High Court refused Atha's application. The court also ordered Atha Africa to pay the legal costs of the coalition of civil society organisations who successfully opposed the application for leave to appeal.

The Ministers of Mineral Resources and Environmental Affairs, as well as the Mpumalanga MEC, had also applied for leave to appeal the court's decision, but withdrew their application yesterday. The court ordered that the State pay the coalition's wasted legal costs in preparing to oppose that application.

The coalition who brought the court application to set aside permissions for the proposed coal mine comprises the Mining and Environmental Justice Community Network of South Africa, groundWork, Earthlife Africa Johannesburg, 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.  The Coalition is represented by the Centre for Environmental Rights.

Issued by the Centre for Environmental Rights

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