The Centre for Environmental Rights (CER) recently argued in court that a potential mine in Wakkerstroom, Mpumalanga, threatens a strategic water source that will impact nearby communities, birdlife, wildlife and the ecosystem. 

The case is one aspect of an eight-year battle by the Mabola Coalition, represented by the CER, to prevent coal mining in the area. The coalition consists of the Mining and Environmental Justice Community Network of South Africa, Groundwork, Birdlife South Africa, Endangered Wildlife Trust, Federation for a Sustainable Environment, Association for Water and Rural Development and the Bench Marks Foundation. 

At the centre of the case is biodiversity and the fact that the area falls within the Enkangala-Drakensberg strategic water source, one of 22 such areas across the country which are collectively responsible for producing 50% of South Africa’s fresh water.

Respondents include the Gert Sibande District Joint Municipal Planning Tribunal, Dr Pixley Ka Isaka Seme Local Municipality Municipal Appeal Authority, Uthaka Energy, the minister of agriculture, land reform and rural development, and the Mabola Protected Environment Landowners Association.

The area in question, which is in the buffer zone of the Mabola Protected Environment, was previously zoned as an agricultural area. With the Indian-owned mining company, Uthaka Energy, seeking to mine coal in the area, one part of the land was rezoned by the Gert Sibande and Dr Pixley Ka Isaka Seme municipalities for mining use.

The Mabola Coalition argued that the process of rezoning was flawed and that the impact on the entire area, rather than just one part, should be considered regarding the rezoning.

It says the rezoning did not take into consideration the strategic water source near the proposed mining area or the environmental impact of the mining. The proposed mine is said to cover 1,200 hectares underground and 22.4 hectares on the surface – spanning five properties. 

Read more in Daily Maverick: ConCourt dismisses Uthaka Energy’s appeal bid against Mpumalanga coal-mining interdict

“The arguments are that there were failures in considering the environmental significance of the area,” Tatenda Muponde, an attorney in the CER’s mining programme, told Daily Maverick.

“The municipality argued that it is not their place to do so because the relevant authorities dealing with the environment had already done [the assessments]. Our clients argued that they have a duty to consider the environment in decision-making.

“The person responsible for granting environmental authorisation is not the same person responsible for granting a rezoning application. You can’t say just because one authority has granted authorisation, that you are not going to apply your mind to environmental considerations. These decisions are separate, even though they apply to the same area,” said Muponde.

Read more in Daily Maverick: Coalition’s court bid to stop company from mining coal in sensitive Wakkerstroom area

The respondents argued that considering no one from the Mabola Coalition lives on or near the land in question, it does not have the legal standing to bring the matter before the court. They also wanted to delay the case as several key government stakeholders were absent.

Alongside this hearing, there are other matters related to the proposed mine that are being heard in other courts. The respondents said it was premature for this matter to be determined while others are still pending.

Some of these matters include the judicial review of the environmental authorisation and water use licence awarded to the mining company, alongside a judicial review by the MEC to exclude found properties from the Mabola Protected Environment, allowing for mining.

Judgment in the case, which was heard on 14 November, was reserved for three months. 

‘No substitute for water’

Dr Kristen Day, advocacy officer at Birdlife South Africa, told Daily Maverick that the Mabola Protected Environment was declared a protected area in order to conserve high-altitude grasslands and wetland habitats and to support indigenous species. 

“Extractive resource mining poses a threat to bird habitats within Important Bird and Biodiversity Areas, and impacts caused by water extraction and pollution are often not limited to the immediate site. The grasslands biome, in general, and particularly the Important Bird and Biodiversity Area in the vicinity of Wakkerstroom, supports both globally and regionally threatened bird species,” said Day.

“Notably, the Mabola matter has wider implications for South Africa’s broad commitments to conserve biodiversity and ecological infrastructure and the need to address the effects of climate change.”

Dr Bill Harding, limnologist and environmental law specialist, said: “There’s no substitute for water; there’s a substitute for coal. Why are we even considering mining coal in 2023 over a strategic water source in an arid, water-scarce country?

“That’s the shocking part of all of this … it’s nothing less than egregiously arbitrary capriciousness. To have an area which you know is a strategic water resource area and to go and reclassify it into a format that allows you to destroy it, is laughably ridiculous.

“If this is where we are, then throw away the environmental laws and to hell with our future … because we have no chance. If that is what the law is allowing to happen; rezoning and reclassification of land use to allow mining in a strategic water resource area, the country has no future if we do that,” said Harding.

“The environmental laws and Water Act do not allow that to happen, but they are still getting away with it, especially if it has anything to do with mining. They are playing fast and loose with the laws… 

“That rezoning is completely cosmetic. Any court that knew what they were talking about would throw that out in a second as a legal fiction. But somehow it seems to happen here.” 

A responsibility to protect 

The broader Mabola case was launched by the CER in 2017, but it has faced delays in receiving submissions and securing court dates.

University of Cape Town lecturer Amanda Khoza has been quoted as saying that strategic water source areas are not formally protected under law, as the Water Act recognises water resources such as rivers, but makes no specific reference to strategic water source areas. 

The National Water Act does state, however: “As the public trustee of the nation’s water resources, the National Government, acting through the Minister, must ensure that water is protected, used, developed, conserved, managed and controlled in a sustainable and equitable manner, for the benefit of all persons and in accordance with its constitutional mandate … the Minister is ultimately responsible to ensure that water is allocated equitably and used beneficially in the public interest, while promoting environmental values.” 

Harding added: “The Mabola case should not even be here. A lot of work has been done on strategic water resources and a lot of policy has been created … those were all to ensure society’s derivable benefits for water. This case removes the derivable benefit. 

“It’s not social justice, it’s a social injustice, and it’s going to be permanent. It may not be noticeable for the current beneficiaries, but the unborn beneficiaries are going to be detrimentally impacted by this particular effort going ahead.” DM