The Pretoria high court has set aside the government’s decision to authorise a coal mining operation in Mpumalanga, due to failures related to environmental concerns.
At the heart of the case, the court said on Monday, was the tension to supply coal, especially given the load-shedding situation, while ensuring the land is fertile.
Eloff Landgoed, a farmer in Mpumalanga, sought to set aside an environmental authorisation granted in favour of Eloff Mining (no relation). The operation was to be close to his farming operations.
Before mining can start, government officials must grant the company authorisation. This requires officials to first consider reports known as environmental impact assessments.
Phillipa King, an attorney at environmental law firm Cullinan and Associates, told Business Day that these “are intended to provide officials with information concerning the potential social, economic and environmental impacts of a proposed project in order to inform officials’ decision to either grant or refuse environmental authorisation”.
Assessments are prepared by independent assessors who, says King, “must be registered, qualified and independent, but the developer pays them for their services”.
In the high court, Landgoed’s case was that the assessments did not indicate the operation should go ahead. As a result, the officials granting the order had made an unlawful mistake.
Assessors said the mine will have an irreversible impact on surrounding farming activity and the land will be totally unusable.
Eloff Mining attempted to mitigate the impact after reading this assessment by saying it will conduct assessments as the operation continues. The government officials felt satisfied.
However, high court judge Stuart Wilson on Monday dismissed Eloff Mining’s promised actions as “meaningless”.
Wilson slammed the government officials for their handling of the assessments. The official from the energy department “did no more than summarise” the activities the operators would perform and the reports. Environmental minister Barbara Creecy, in confirming the authorisation, “[did] not really come to grips” with what the assessors said.
As a result, Wilson said, he was unable to conclude the government properly “considered, assessed and evaluated” the different impacts.
Wilson noted the tension in the case was central to the ongoing load-shedding crisis. But, he said, “[that] is a social, economic and political question”, not one for the court.
Speaking to this tension, energy minister Gwede Mantashe in May doubled down on the government’s position to focus on mining and gas exploration. “People can take us to court as many times as they can,” Mantashe said in response to questions about the controversial Karpowership deal, but “we will continue with gas and petroleum exploration”.
Last year, Mantashe’s decisions to grant oil and gas exploration rights in local seas to major corporations like Shell were set aside by the courts after local communities brought cases in the Wild Coast and West Coast. He notably called this environmental activism “colonialism and apartheid of a special type” in 2021, when the challenges first began.
Now, in Pretoria, the high court has again set aside government’s environmental authorisation pertaining to mining.
However, as Wilson noted in his judgment, all that the court is empowered to do is evaluate whether the government adhered to its own rules and procedures, which in this case, as with Mantashe’s previous one, it did not.
In the end, Wilson ordered that the authorisation given to Eloff Mining be set aside and had to be sent back to the minister for reconsideration. The government officials were ordered to pay Landgoed’s legal costs.
King says the officials should have refused or taken more careful steps before authorising. She also notes that the first official who signed off was from the department of energy, which, in her opinion, “has a vested interest in promoting mining and frequently approves mining projects even if they result in the permanent loss of valuable agricultural land”.
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