Wednesday, January 26

Constitutional Court dismisses the appeal of the coal mining company


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

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

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

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Earlier this month, the Constitutional Court rejected a request by Uthaka Energy for authorization to appeal a interdiction order granted in Pretoria High Court in March.

The injunction prohibits the company from starting any extraction at its proposed Yzermyn coal mine until six ongoing High Court challenges to various approvals for the mine already granted by authorities have been resolved. Currently, the company is only allowed to carry out traceability studies of the mining area and an associated wetland.

The injunction request was submitted by a coalition of eight environmental and civil society organizations that have opposed the mine since 2015.

The proposed mine is located within a Strategic water source area in the grasslands and wetlands of the Wakkerstroom area, one of 22 areas that together produce more than 50% of South Africa’s fresh water.

Until January 2021, the proposed mining area was also included within the 8772-hectare Mabola Protected Environment, a protected area declared under the Protected Areas Law 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 joint ministerial permits. This is one of six authorizations the coalition is currently challenging.

In 2019, the company approached Constitutional court for the first time with a request for authorization to appeal. This was after the Supreme Court of Appeals (SCA) did not consider his appeal against an adverse ruling from a lower court that had blocked the mining proposal for reasons related to protected area status.

The last equally brief court order on November 4, 2021 stated: “The Constitutional Court has considered the request for authorization to appeal. It has come to the conclusion that the request should be rejected since it is not in the interest of the courts for this court to consider it at this stage ”.

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

  • A review of Mpumalanga MEC’s ​​decision to revoke the protected area status of the four Mabola properties that Uthaka Energy proposes to exploit;
  • A review of the environmental authorization for the project issued by the Mpumalanga Department of the Environment;
  • A review of the granting of the water use license for the mine;
  • Appeal against the decision of the Water Court to dismiss the appeals against the granting of the water use license;
  • A review of the approval of land use planning by the local authority; and
  • A review of the granting of the mining right.

The latest court decision has been welcomed by members of the coalition opposing the mine. One of them is preparatory work, a non-profit environmental justice service and development organization based in KwaZulu-Natal.

Director Bobby Peek said: “We welcome the decision of the Constitutional Court as an important local recognition of the need to halt the development of new coal mines, particularly in our strategic areas of water sources, when the impact of the extraction and burning of coal in global warming is irrefutable. Our focus, particularly here in Africa, must be on building our resilience to climate change, not making it worse. ”

Coalition members include the South African Mining and Environmental Justice Communities Network, BirdLife South Africa, Endangered Wildlife Trust, the Federation for Sustainable Environment, the Association for Water and Rural Development (AWARD) and the Bench Marks Foundation. , and are represented by the Center for Environmental Rights.

In response to questions about Uthaka Energy this week, the Atha Group said it had relinquished its interest in Uthaka Energy Proprietary Limited, South Africa, effective October 25, 2021.

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

© 2021 GroundUp. This article was published for the first time here.


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