Mining in or Close to Protected Areas

[Lisbeth]

Zimbabwe bans mining in wildlife parks

Reuters, 08.09.2020

HARARE, Sept 8 (Reuters) - Zimbabwe's government has banned mining in game reserves following concerns from conservationists who accused two Chinese companies of exploring for coal in the biggest national park, Hwange.


Hwange, in western Zimbabwe, is home to the country’s biggest elephant herd – more than 40,000, large prides of lions as well as buffalo, among other game and birds that are popular with tourists.

The park is near a forest where 22 elephants have died in mysterious circumstances.

The Bhejane Trust, which works with the wildlife authority in conservation in Hwange and the Safari Operators Association said two Chinese firms were allocated concessions inside the park.

“Mining on areas held by national parks is banned with immediate effect. Steps are being undertaken to immediately cancel all mining title held in national parks,” information minister Monica Mutsvangwa told reporters on Tuesday.

Mines Minister Winston Chitando said state mining arm Zimbabwe Mining Development Corporation held the Hwange concession but then partnered the two Chinese firms, Afrochine Energy and Zimbabwe Zhongxin Coal Mining Group.

Bhejane said while on a monitoring mission inside the park with park rangers recently, they intercepted the two companies’ workers conducting exploratory drilling.

“Parks arrested them and turned them over to the police. However, they soon reappeared with a permit giving them the right to carry on in the park with exploratory drilling,” Bhejane said in a statement.

AfroChine official Pardon Kufakunesu denied exploring in the game park. Zhongxin could not be reached for comment. (Reporting by MacDonald Dzirutwe; Editing by Angus MacSwan)

[Richprins]

[Klipspringer]

https://www.groundup.org.za/article/sla ... ed-friday/

Community divided over challenge to expansion of mine adjacent to the popular Hluhluwe-iMfolozi Park


Murdered anti-mining activist, 65-year old Fikile Ntshangase, will be buried on Friday. A vocal opponent of the expansion of the Somkhele coal mine on the border of Africa’s oldest game park, Hlhuhluwe-iMfolozi in KwaZulu-Natal, she was a leading member of the Mfolozi Community Environmental Justice Organisation (MCEJO), which is taking legal action against mine owners Tendele Coal Mining.

There are two parallel cases before the courts. One, scheduled for hearing in the Supreme Court of Appeal on 3 November, seeks an order that all mining activities halt until the mine complies with environmental and other laws.

But the court challenge that allegedly put a price on Ntshangase’s life is MCEJO’s application to the Pretoria High Court to set aside Tendele’s latest mining right, issued in 2016 and covering a 222km2 area in Mpukunyoni. This is according to a joint statement from MCEJO, the Global Environmental Trust (GET), the Centre for Environmental Rights, and other organisations, who say the mine has caused “untold destruction of the environment” and adversely impacted people’s lives in the area.

Over the past few months, tensions have risen in the community over the proposed expansion of Tendele’s operations into the new mining area, and MCEJO’s opposition to that expansion.

GET spokesperson Sheila Berry says that recently Tendele had been pushing for an “agreement” to be signed between MCEJO and Tendele to withdraw its court challenges in view of the massive number of jobs that will be lost should the mine be unable to expand.

While seven members of MCEJO, including Sabelo Ddladla, a lead applicant in the court cases, recently signed a Memorandum of Agreement to this effect, Ntshangase stood her ground.

“Nsthangase refused to sign the agreement and days before her killing stated her intention to write an affidavit about an alleged offer of a R350,000 bribe in return for her signature,” says Berry.

“I refused to sign. I cannot sell out my people. And if need be, I will die for my people,” she is reported to have said.

At about 6:30pm on 22 October, four gunmen arrived at Nsthangase’s house, where she lives with her 11-year old grandson, about 500 metres away from the site of the planned mine expansion. She died at the scene of multiple gunshot wounds.

The latest joint statement from Tendele, local municipal councillors, traditional leaders and unions representing the mine employees, condemns the killing and calls for “calm and leadership from all parties to ease tensions”.

Tendele CEO Jan Du Preez has linked the murder and other recent incidents of violence and intimidation to concerns about retrenchments and job losses that will occur if all families living in future mining areas do not agree to relocate.

He says 254 families in future mining areas had agreed to move, accepting average compensation of R750,000 per household, but 19 families are still holding out, demanding excessive compensation.

He says the mine is operating lawfully, and expansion is necessary to keep the mine viable and protect 1,600 direct jobs and hundreds of indirect jobs in this impoverished part of the country.

The Mpunkyoni tribal area is home to about 158,000 people. Villagers make their living raising goats and cattle, and growing food. Many depend on social welfare grants and money sent by family members working in the cities. The mine and the park are the biggest employers in the area, with more than 3,000 full- and part-time workers between them.

In Divided We Dance, a 2018 short film directed by Anna Prichard, Somkhele villagers talk about the many difficulties they have faced since the mine opened in 2007, and how they once had cows, fields and natural water from the streams – much of which is now gone.

Villagers also complain of noise and dust from the mine, and point to cracks in the walls and windows of their homes that they say are caused by regular blasting. During visits to Somkhele over the years reporters have observed coal dust in the air and on the plants.

The mine is also affecting Hluhluwe-iMfolozi Park. Frequent blasting rends the air and heavy machinery rumbles around the clock. A recent report by Ezemvelo KZN Wildlife, the government agency that manages conservation areas in KwaZulu-Natal, says the mine’s impact on the Hluhluwe-iMfolozi Park has increased substantially over the past two years.

“The noise and visual intrusion (day and night) into the iMfolozi wilderness area is significant and constantly noted by Ezemvelo staff and visitors on the trail, seeking a wilderness experience,” Jenny Longmore, Ezemvelo’s senior conservation planner, writes in the report.

The park’s white rhino (Ceratotherium simum) population is now in decline. Longmore has flagged a section of the park nearest to the mine as a “rhino poaching ‘hot spot’ zone”. She offers a number of explanations for this, including a growing road network and traffic around the mine, which make it easier for poachers to sneak into the park.

On the basis of the polluter must pay principle, Ezemvelo has asked the mine to fund a comprehensive study into the adverse impacts its operations have had on the park.

While the proposed northern extensions would not bring the mine closer to the park boundary, various environmental groups are quick to point out that the operation will continue to exact a toll on the quality of water in the iMfolozi River that feeds iSimangaliso Wetland Park, a UNESCO World Heritage Site about 15km downstream of the mine, on the edge of the Indian Ocean.

Tendele CEO Jan du Preez says the mine has gone to great lengths to protect water sources, while also providing water for residents in an area periodically hit by drought. He says Tendele is also engaging with Ezemvelo to set up biodiversity-offset zones.

The mine has also worked to address community grievances through quarterly meetings of the Mpukunyoni Community Mining Forum (MCMF), Du Preez says. The forum, which includes traditional leaders from 30 tribal wards, elected councillors from the local municipality communities directly affected by the mine, mine workers, and businesses that trade with the mine.

Attorney Kirsten Youens, who represents families adversely affected by the mine, reckons MCEJO has about 4,000 members. Du Preez disputes, saying it represents fewer than 150 people, none of which have attended MCMF meetings. He says the mine’s legal advisors are currently engaging with MCEJO with a view to finding an amicable resolution for all interested and affected parties.

“Mediation remains our objective to avoid the closure of the mine which will result in the loss of 1,600 jobs in an area where unemployment is rife. If the mine closes, this will have a devastating effect on the community as thousands of people benefit directly and indirectly from the mine,” says Du Preez.

He estimates that some 20,000 people directly benefit from the operation of the mine and a further 20,000 people have obtained educational and training benefits since the mine’s inception some 14 years ago.

While Tendele continues to blame people refusing to relocate for delaying the mine expansion, Youens counters that Tendele only has itself to blame for not getting free, fair and informed consent for its expansion plans from directly affected families, and for operating unlawfully without all the necessary environmental authorisations.

She accuses Tendele of inciting violence by pinning impending job losses on her clients.

“The strategies used by Tendele are sadly typical of many companies operating in impoverished rural communities,” she says. “Mines dangle incentives to impoverished community members with the inevitable consequences of stirring deep community divisions, which almost always lead to violence and deaths.”

Hluhluwe-iMfolozi Park’s Longmore acknowledges the mine is a major employer in the area, but argues it has fewer full- and part-time employees than the park. Jobs at Tendele will come to an end when the mine has been depleted, whereas the park and related projects have potential for growth and are timeless in value, she says.

Cheryl Curry, chief executive of the Wilderness Leadership School, which runs the wilderness trails in the park, says she hopes the courts will recognize this and the critical role wilderness areas play in the fight against climate change, protecting biodiversity and human well-being.

“Damage being done to the environmentally sensitive iMfolozi wilderness area is direct and immediate and permanent. It is happening now,” Curry says. “We are talking about … the protected heritage of [Zulu] King Shaka’s royal hunting grounds and about a scientifically proclaimed wilderness area with all that this entails, including the vital protection of its biodiversity.”

[Richprins]

No coal mine for Nkomazi in Malalane for now
Marius Bakkes

An application to open an opencast coal mine in the Onderberg near Marloth Park, has been rejected by the Department of Mineral Resources (DMR).

The DMR formally refused the mining application of Manzolwande Investment Pty Ltd in a letter dated October 28, 2020. The department directed a letter to the mining applicant in which it refused the environmental authorisation sought by Manzolwande to mine as intended. Lowvelder is in possession of a copy of the letter. The formal objection against the mining application in Nkomazi was driven by Richard Spoor Attorneys.

The instructions came from a combination of organisations including the Marloth Park Property Owners Association (MPPOA), Nwenya Lodge management and the Marloth Park Rate Payers Association (MRPA), as well as some affected individuals, following a public meeting organised by Jan Engelbrecht of the Komatipoort and Malalane Business Chambers, held in June 2019 at Kambaku Golf Club.
Phillip Mkhatshwa a director of Manzolwane Investments

“This meeting called upon all interested and affected parties to consider this matter, and this collaboration of tourism, agriculture and business paid off, resulting in this formal refusal of the envisaged mining project at farms close to Marloth Park,” said Engelbrecht.

“The cooperation and counter actions by these objecting organisations and individuals contributed largely the fact that government could not accept the application,” he told Lowvelder this week.

The proposed mining area encompassed Tenbosch 162 JU (excluding portion 46, 74, & 90), all portions (excluding 01) of the farm Vyeboom 414 JU, all portions of the farm Turfbult 593 JU and all portions of the farm Tecklenburg’s Ranch 548 JU. This stretches from the edge of Marloth Park to the edge of Komatipoort.

The objectors’ concerns included that no proper public awareness programme had been followed by the mining applicants. They objected against the incomplete invitation.
The applicants called for a public meeting on a Sunday morning which was inconvenient to many.
The exact position and size of the land site involved, according to the last application.

They further gave too short notice in terms of the Act, and the meeting was conducted at an awkward setting in the open under a tree in Hectorspruit. This meeting was attended by Denis Goffinet of the MPPOA.

Shortly after this notice was discovered, Cindy Benson of the MRPA photographed the whole of the publication filed at Komatipoort Library with her mobile phone.
Upon scrutiny it was discovered the EIA documentation was a blatant copying and pasting of a similar application for another site not relevant to the site in Nkomazi.

The MRPA, Ngenya Lodge ownership and the MPPOA soon thereafter exposed the unacceptable methodology followed by the applicants.
Farming groups joined to contest the application.


Marloth Park Holiday Township is the haven of many city dwellers, most of them professionals, and retired experts.
These include retired mine managers, mine engineers, environmental experts, including Christine McGladdery and Murray Broad, who spent many hours dissecting all the submissions from the mining company and discovered the plagiarism and lack of professional supporting documents.
SAAI also added its weight, based on its mandates from local members.
Criminal charges were laid at the SAPS Komatipoort regarding the plagiarism and fraud.



Several departments and parastatals also expressed their categorical objection against mining in the area.

Phillip Mkhatshwa, a director of Manzolwane Investements, told the newspaper that the battle is not over yet. They discovered some errors regarding the position of the proposed mining site in the ruling of the department which they now will dispute.

He said, however, it is of the utmost importance that the process is followed strictly according to the legal prescription and his organisation will abide by it.

https://lowvelder.co.za/711629/no-coal- ... e-for-now/

[Richprins]

Illegal mining or recycling at Rimers Creek in Barberton?

Operations started just over a month ago and residents fear that the area, which forms part of the Barberton Nature Reserve, may never return to its original state.
2 hours ago
Enver Wessels





Residents and the owners of Above Average Mine are at loggerheads over what the ratepayers’ association fears may be an illegal mining operation at Rimers Creek, where the town’s water treatment facility is located.

Operations started just over a month ago and residents fear that the area, which forms part of the Barberton Nature Reserve, may never return to its original state.

DA councillor, Phillip Minnaar, and the Barberton/Umjindi Ratepayers’ Association, led by chairman Andy Nuns, have voiced their opposition to what they deem to be illegal activity on the part of Above Average Mining (AAM).



The parties expressed their concern that the go-ahead was given for AAM to operate without having produced documentation indicating that it was above board.

Minnaar posed a number of questions aimed at ascertaining whether the City of Mbombela Local Municipality approved the operation, whether it was tabled to council for approval and whether all relevant permits including water, mining, South African Heritage Resource Agency and Mpumalanga Tourism and Parks Agency permits, as well as an approved environmental impact assessment (EIA), were in place.

Nuns consulted a third party in Johannesburg who conveyed his surprise at the extent of the vegetation that had been cleared.



According to Nuns’ communication, it was confirmed that the documents would be required to proceed with operations and that, as part of the EIA, an environmental management plan (EMP) had to be instituted by an independent third party.

He further alleged that AAM did not allow any photographs to be taken at the site and that access to interested parties was denied.

“The EMP and contract and terms between the municipality and contractor are not forthcoming, It was all entered into during the lockdown when excavations commenced.



AAM CEO Mdu Mdhluli.



“They will not tell us which specific areas are to be mined or rehabilitated. No public participation took place and it does not appear as if the contract was approved by council,” he said.

According to Nuns, no responses to the ratepayers association’s concerns have been forthcoming from the municipality and the area falls well within the World Heritage Site and not just within the buffer area.

Further to this are fears that the approximately 90 tipper trucks that make their way from Rimers Creek to Fairview Mine, which Nuns alleges are piled high with contaminated soil, may pose a health risk to residents.
Advocate Johannes Ntsako Sambo and environmental manager, Sobahle Hlatshwayo.



According to AAM CEO, Mdu Mdhluli, the operation was started to remove curlings and avoid soil erosion, because the tailings contain cyanide that may contaminate the water supply at Rose Creek and Rimers Creek.

“As a concerned mining company, AAM has embarked on a recycling programme which we are conducting pro bono. This is a priority because of its proximity to the water treatment works.

“We approached the municipality on how to build the infrastructure to reduce waste during our recycling operation. The difference between rehabilitation and mining needs to be understood in terms of the Ataqua ruling which is a key judgement pertaining to mine waste,” he said.


In terms of the ruling, tailings dumps are movables and as such, ownership vests in the person who removed the minerals as they had occurred naturally in or on the earth.

Mdhluli dispelled the notion that the area, once cleared, would not be rehabilitated.

“Before rehabilitation operations started, samples of the indigenous vegetation were removed and taken to a nursery where they are being kept in order to be replanted once operations cease,” he added.



According to Mdhluli, the area had been mined before or about 1887 and the cyanide extraction method used, which still poses a serious health risk.

He continued, “AAM is not benefiting from the project, but it has created about 45 jobs, with a team dedicated to cleaning any spillages from the trucks.

“We cover our costs, but will return the area to its original pristine state and extend our apologies to the community for the movement of trucks between 03:00 and 19:00.


“This is a trial run but we will continue to remove the sand and transport it away from the residential area,” he concluded.

https://lowvelder.co.za/711470/illegal- ... barberton/

[Lisbeth]

I smell a rat

[Lisbeth]

Mpumalanga government paves way for mining in protected grasslands

By Masego Mafata• 10 March 2021


The provincial government has revoked the status of part of the Mabola Protected Area in the Mpumalanga grasslands. (Archive photo supplied by GroundUp)

Provincial government revokes status of part of Mabola Protected Environment.

First published in GroundUp.

The Mpumalanga government has revoked the status of the Mabola Protected Environment, in a move that activists fear will open up the way for mining in the area.

Former MEC for Agriculture, Rural Development, Land and Environmental Affairs Vusi Shongwe revoked the protected area status for a portion of the Mabola Protected Environment (MPE), a highly sensitive protected grassland and water catchment area.

Zanele Shabangu, head of communication in the Department of Agriculture, Conservation, Environment and Rural Development, told GroundUp the decision had been taken “after intense interrogation and consideration of all the facts that were presented before him by the Voice Community, the SA National Botanical Institute (SANBI) and civil rights non-profit organisations.”

The Centre for Environmental Rights (CER) says this will open the area to mining. The CER represents a coalition of eight public interest organisations, who have been challenging efforts by Mpumalanga’s Agriculture, Rural Development, Land and Environmental Affairs and mining company Uthaka Energy to develop a 15-year Yzermyn underground coal mine within the Mabola Protected Environment in Mpumalanga since 2015.

“The Department’s decision does not make reference to which economic activities should take place in the area. As to whether mining will be allowed, it will depend if whoever wants to mine has all the necessary approvals to mine,” said Shabangu.

The Coalition is considering a legal challenge against the MEC’s decision, said Catherine Horsfield, Attorney and Mining Programme Head at CER.

The development of a mine by Atha-Africa Ventures has been contested in the courts since 2018, when the Pretoria high court set aside a 2016 decision by then Minister of Mineral Resources Mosebenzi Zwane and the then Minister of Environmental Affairs Edna Molewa to permit the development of a new coal mine by Atha-Africa Ventures inside the Mabola Protected Environment. The court said the two ministers had not consulted the public.

The company, now known as Uthaka Energy, then went on to make four unsuccessful attempts to challenge the Pretoria high court judgment, most recently in the Constitutional Court. Uthaka Energy is a local subsidiary of India-based Atha Group.

The Constitutional Court’s decision still stands, therefore ministerial permission to mine in this area remains unlawful, Horsfield told GroundUp. She said the MEC’s decision “appears to be an attempt to avoid those court judgments and an attempt to circumvent the joint Ministerial permission required to allow commercial mining in the Mabola Protected Environment in terms of the Protected Areas Act.”

The Mabola Protected Environment was declared a protected area in 2014, following years of lobbying, research and planning by environmental rights organisations and government agencies, including the Department of Environmental Affairs, the South African National Biodiversity Institute and the Mpumalanga Tourism and Parks Agency.

This protected area status was granted due to its ecological sensitivity as a high-yielding, highly strategic water catchment area within a high-altitude and threatened grassland ecosystem.

“What limited employment might materialise for local communities if the mine goes ahead is not proportionate to the damage that a coal mine will wreak for those communities who are local to the area and for the country’s already tenuous water security,” said Horsfield.

However, Thabiso Nene, chairperson of the Voice Community Representative Council, which he says represents the mining-affected communities in the area, welcomed the MEC’s decision.

He said a petition to withdraw the status of the area had been signed by 8,500 people.

“Following the petition, a rigorous Public Participation was done by the Department of Environment by appointing an independent expert panel which deliberated on various issues. We, the community, are glad that the panel and the MEC understood the urgent need to address the development and unemployment problems of the community, made more severe by the Covid-19 pandemic, in deciding to partially deproclaim the protected environment, thus enabling the development of businesses to create employment opportunities.”

Also see: https://www.africawild-forum.com/viewto ... 08#p535008

[Lisbeth]

Isn't coal mining supposed to be something of the past?

[Alf]

Yet another way for them to be corrupt and to steal money

[Lisbeth]

First article: https://www.africawild-forum.com/viewto ... 62#p524362

Community won’t back down in fight against expansion of Tendele coal mine in KZN, despite taking a legal beating

By Tony Carnie• 28 February 2021


Women from the Somkhele area protest against Tendele Coal Mining outside the High Court in Pietermaritzburg. (Photo: Rob Symons)

Community and environmental groups took a beating – twice – when they challenged a major mining company in the courts. But they remain determined to fight all the way to the Constitutional Court.

It takes a brave legal team to contest a 4-1 majority ruling by the Supreme Court of Appeal. But that is the decision taken by a group of lawyers representing groups opposed to the expansion of one of South Africa’s biggest anthracite coal mines. Their position is that government has a constitutional duty to safeguard their health and the environment by providing carefully considered authorisation for all major developments – including mining industry activities that have long been shielded from direct oversight by the Department of Environmental Affairs.

But while this battle drags on in the genteel atmosphere of courtrooms, the people affected by 14 years of mining in the Somkhele area near Mtubatuba in KwaZulu-Natal have been living with water and air pollution. They have been pulled apart by violent conflicts, lost homes and farming land and faced the murder of 63-year-old anti-mining campaigner, Mam’ Fikile Ntshangase, by three unknown gunmen in October last year.

Earlier this month, the Supreme Court of Appeal dismissed an appeal by the Global Environmental Trust (GET), the Mfolozi Community Environmental Justice Organisation (MCEJO) and local resident Sabelo Dladla after they asked for an interdict that would effectively shut down the Somkhele coal mine until it obtained formal authorisation.

The court case began in August 2018 when GET, MCEJO and Dladla launched an application in the Pietermaritzburg High Court, alleging that the mine was operating illegally and in contravention of various legislation.

The mine, owned by Tendele Coal Mining, is located in a rural area on the boundary of the Hluhluwe-iMfolozi Park. They argue that Tendele has been operating since 2007 with mining permits from the Department of Mineral Resources but without formal authorisation in terms of amendments to the National Environmental Management Act (Nema) that came into effect in 2014.

But Judge Rishi Seegobin rejected the application and supported Tendele’s position that its operations were protected by transitional arrangements that allow mining companies to continue operating lawfully despite the 2014 environmental law change.


Attorney Kirsten Youens (left) has spearheaded the legal battle against Tendele’s coal mining operations. Sabelo Dladla (right) was also at the heart of the battle, but was reported to have received a death threat last year and has since withdrawn from the court case. (Photo: Rob Symons)

GET, MCEJO and Dladla took the case on appeal late last year, arguing that Seegobin had erred in his ruling, but the Supreme Court of Appeal also ruled against them in a majority verdict written by Judge Visvanathan Ponnan.

A four-to-one majority is an emphatic defeat – but the GET legal team is preparing for one final round in the Constitutional Court, buoyed by the dissenting ruling from appeal court judge Ashton Schippers.

Kirsten Youens, the Durban environmental attorney who represents GET, MCEJO and Dladla, believes that both judgments focused too closely on legal procedures rather than justice and she believes the case has good prospects in the Constitutional Court.

Schippers has expressed concern that the recent judgments create uncertainty about the interpretation of laws regulating the mining industry that could weaken the protections written into the Constitution and potentially allow mining companies to “flout” the rule of law.

In the first High Court case, Seegobin commented that the applicants “failed to make out a proper case” for the legal relief they wanted: “The applicants have simply failed to put up cogent evidence to support their contentions that Tendele is mining unlawfully and without the requisite authorisations, environmental or otherwise.”

He also emphasised the procedural importance of motion proceedings, where an applicant had to stand or fall by the founding affidavit and the facts alleged in it.

In his view, a “proper interpretation” of the relevant law amendments suggested that environmental management plans (EMPs) have the same legal status as environmental authorisations in terms of a transitional legal provision. “One can well imagine what would have happened if this was not the case: the result would have been to render existing lawful mining operations unlawful overnight. This would have been an unreasonable and unbusinesslike result.”

Writing for the majority in the Supreme Court of Appeal, Ponnan supported the high court ruling, commenting that he was surprised that Seegobin had granted the applicants permission to appeal to a higher court.

The majority also emphasised the importance of meeting evidentiary and procedural requirements in the original High Court motion court proceedings. “If, as [Seegobin] correctly points outs, the factual allegations relied upon by the appellants were, ‘for the most part, incorrect and unsubstantiated’, that, one would have thought, would have been the end of the matter.”


A line of coal trucks queueing up outside the Somkhele mine near Mtubatuba in northern KwaZulu-Natal. (Photo: Rob Symons)

Nevertheless, Seegobin had felt impelled to grant leave to appeal to GET and MCEJO because there were “issues of interpretation and questions of legality that may arise”.

But, said Ponnan and the majority, it was not necessary for the appeal court to get into the legal interpretation of national environmental laws at this stage because the original founding affidavit was deficient.

Schippers has taken a different view of this case, stating that he was “baffled” by Seegobin’s view that the applicants’ founding affidavit did not go far enough to back their case. He also disagreed with the view that an EMP and an environmental authorisation were comparable animals. In his view, they are distinctly different: an environmental authorisation requires a far more rigorous assessment process than an EMP, which was a subsidiary document to guide employees on how to mitigate environmental impacts on a day-to-day basis.

There was also no provision in mining or environmental regulation that suggested decision-making on the environmental impacts of mining could be left to “functionaries” of the Department of Mineral Resources.

He also rejected Tendele’s position that the applicants did not require authorisation for mining operations specifically listed under environmental law.

“Tendele’s argument has no merit: it is opportunistic and contrived,” said Schippers, noting that Somkhele was one of the largest open-pit anthracite mines in South Africa.

Schippers has also raised concern that it was necessary for the courts to interpret and make a pronouncement on these critical issues for two reasons.

First, Seegobin’s order would remain binding in KwaZulu-Natal because it created a significant divergence of interpretation of the relevant laws in the KwaZulu-Natal division and other high court divisions.

“Second, the absence of clarity and certainty concerning the correct interpretation will potentially weaken the environmental protections sought to be achieved by section 24 of the Constitution and Nema. This, in turn, would result in the flouting of environmental standards and undermine the rule of law.”

It was clear, he believed, that companies with authorisations under mining law were not absolved of the responsibility to obtain authorisation under environmental law as well.

GET and MCEJO having decided to take the case on appeal to the Constitutional Court ; they have another hurdle to cross by obtaining leave to appeal against the Supreme Court of Appeal decision and they have until 3 March to file this application.

Thereafter, Tendele and any other interested parties have 10 court days to indicate whether they oppose the application and a further 10 court days to file a formal application to cross-appeal. The court will then decide how to deal with the matter. DM168