Centre for Environmental Rights: South Africa Constitutional Court Rules against Coal Mining in Mpumalanga Protected Area

Originally published here on 18 NOVEMBER 2019 AT 9:52 AM

The Constitutional Court has had the final say on the approvals for a coal mine inside an Mpumalanga Protected Area and Strategic Water Source Area. Earlier this month, the Constitutional Court refused the mining company’s final challenge of a 2018 High Court decision to set aside Ministerial approvals for the proposal coal mine.

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

South Africa has 22 Strategic Water Source Areas (SWSAs) which comprise 10% of the land area that produces 50% of the country’s fresh water. They supply water to South Africa’s largest urban centres, agricultural areas and support downstream economies and ecosystems. The Enkangala-Drakensberg Strategic Water Source Area specifically supports the economic hub of Gauteng as well as various towns and agricultural regions in Mpumalanga, KwaZulu-Natal and the Free State.

Atha-Africa Ventures (Pty) Ltd (Atha) was granted a mining right for coal after this area had been identified as a SWSA and after the Mabola Protected Environment (Mabola) was declared. Alarmingly, after the mining right was granted, the various government departments responsible for the environment and our water resources issued the other authorisations Atha requires for its proposed mine.

This is why a civil society coalition went to court to defend the area from proposed new coal mining.  

Credit Mabola3

In November 2018, the Pretoria High Court set aside the 2016 decisions of the then Ministers of Mineral Resources and Environmental Affairs, Mosebenzi Zwane and Edna Molewa, to permit this new coal mine to be developed inside Mabola, with a punitive costs order against the Ministers and the MEC for Environment in Mpumalanga.

Mining company Atha attempted four times to challenge that judgment. The Constitutional Court was the mining company’s last hope. The civil society coalition defending Mabola was obliged to oppose all of those challenges and is delighted that the 2018 judgment remains intact. The Constitutional Court also awarded costs against the company.

“This is a significant victory. Our courts continue to recognise the importance of the protection of the environment, and our strategic water resources, especially at a time when we are already suffering the impacts of climate change. Decisions to authorise coal mines should be critically scrutinised and questioned.”

Elton Thobejane, Chairperson of Coalition member the Mining and Environmental Justice Communities Network of South Africa (MEJCON-SA).

For further reading, link to original article here; more importantly, check this article by GroundUp for an in-depth understanding of why these civil societies must remain incredibly vigilant. South African Ministers change their minds frequently and will refile (in this case: 3 months apart!) to re-open a protected area again for mining permits.

Why cannot good laws punishing erratic filings be enacted against a government official in their work capacity? #stopgovcorruption

Pretoria High Court judgment of November 2018. More information about the importance of legal protection for Strategic Water Source Areas. More information about the civil society campaign to defend the Mabola Protected Environment

On the Edge of Survival, a Report on Paraje Natural Karst en Yesos de Sorbas by Ion Holban

Originally published in New Environmentalist online magazine, here, 3 March 2016; report was edited by Ciprian Diaconita (Environmental & Social Change UK); Maps were produced and provided by Alexandru Beldiman (Rights of Nature Europe); reprinted with express permission from the author

To give you an idea as to the background of Europe’s last remaining oasis in Paraje Natural Karst en Yesos de Sorbas, The Crowd Versus is publishing below part of the entire report which Ion Holban researched, examined, hiked, and published in 2016.

Since then, the situation in the aquifer has only worsened to a level above 400% overexploitation, as indicated in our post of September, link here.

According to Ion Holban, back in 2016, he and others found the following during their exploration and research:

Despite the ecological importance of the area, the park is currently only protected as a ‘Paraje Natural’. This is one of Spain’s lowest levels of protection. We found some economic activity in the Park including traditional agriculture and recently, intensive plantations.

Gypsum and olive oil are the region’s main economy and the park is surrounded by 7 open-cast gypsum quarries including Los Yesares, Europe’s largest gypsum quarry.

Intensive plantations can be found throughout the region, and most worryingly inside the park. Infrastructure in the park is over-developed with a motorway, bridges and several national roads. On top of that there is a high-speed railway through the Sierra Cabrera mountains a few kilometres away, with plans to build additional infrastructure.

In the last 10 years a new types of super-intensive olive plantations, (1,800 trees per ha.), have added an immense pressure on the underground aquifers that feed the park with non-renewable fossil water.

The ancient fossil water aquifer located in the Sorbas-Tabernas basin that feeds the river is severely overexploited, as indicated in the Junta de Andalucía’s Hydrological Plan of 2010, with an index of 330% overexploitation. [ . . . ]

Map 3 of the River Aguas, depicting fragmented or no flow areas with photographs of affected areas in original report

In our trips on the river we came across several areas where the river no longer flows and other areas where it has been fragmented to shallow pools. In particular we found no flowing water outside the villages of La Huelga, Los Giles and only shallow pools around Alfaix and further down, towards Turre, as detailed in the map below.

It is worth mentioning that we completed our walks on the river at the end of winter/ beginning of spring (February and March 2016) when the river flow is at its highest level. In the summer months the flow of the river is further reduced. From our assessment the river no longer has a continuous flow of water and it’s questionable if it can still be considered as a single body of water, fulfilling it’s potential as an ecological corridor.

Brazil: Vale Company to pay for damages caused by Brumadinho dam collapse

26 August 2019; originally published here by BBC 10 July 2019

A judge in Brazil has ordered mining giant Vale to pay compensation for all damages caused by the collapse of the Brumadinho dam in January. The collapse was Brazil’s worst industrial accident. The judge did not set a figure for the compensation but said that the company was responsible for fixing all the damages including the economic effects.

At least 248 people were killed as a sea of mud engulfed a staff canteen, offices and nearby farms. Twenty-two people are still missing following the collapse of the Feijão dam on 25 January.

Judge Elton Pupo Nogueira also said that $2.9bn (£2.3bn) of Vale’s assets frozen by courts should remain blocked. He said the funds should be used to make compensation payments to affected families and businesses. Explaining why he had not specify an amount for Vale to pay out, he argued that technical and scientific criteria were not enough to quantify the effects of the collapse. 

“The value [of the compensation] is not limited to the deaths resulting from the event, it also affects the environment on a local and regional level as well as the economic activity in the affected region.”

Judge Nogueira

Thus far according to the BBC article, and please find the entire article here.

What is interesting to note, is the indication that Judge Nogueira leaves room for the impact of this environmental disaster to be determined in the future for the environment as well. This gives hope for a different view of how corporations are going to have to rectify the ramifications of a disaster from their operations.

Along those lines is how The Crowd Versus works: we believe legal change will create societal change. Because we think that a company has a social duty to the people surrounding its location and to the environment.

Call to action:

Consider supporting one of our cases by becoming a monthly donor: find out more here or donate below to a fund that distributes your entire donation equally between all 4 cases pending at The Crowd Versus.

Alternatively, you can donate your time and/or artistic product in support of one of our cases, check here.

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HRW: SA Court denies human rights activists access to documents in defamation lawsuit by Mineral Sands Resources

Published by business-humanrights.org on 5 June 2019; Author Khulekani Magubane, Fin24 (South Africa); original article here

“Xolobeni lawsuit: Activists Denied Access to Documents for Defamation Defence”, 1 Jun 2019

The Western Cape High Court denied two attorneys and an activist opposing Mineral Sands Resources’ parent company’s plans to mine in Xolobeni access to documents which they hoped to use to defend against a defamation suit from the company.

The company that is looking to start mining in the heritage site community of Xolobeni in the Eastern Cape is taking environmental activists and attorneys to the Western Cape High Court for defamation. The two plaintiffs are Mineral Sands Resources – a subsidiary of Australian mining company, Mineral Commodities – and Mineral Sands Resources director, Zamile Qunya.

The defendants maintain that the defamation application is a “slapp-suit” intended to intimidate and financially exhaust their campaign. They made an interlocutory application for access to documents they said would prove their remarks constituted fair comment and not defamation. CER executive director Melissa Fourie said the organisation remained committed to resisting the threat that MRC’s “slapp suits” posed to civil society’s Constitutional rights to freedom of speech, freedom of the media and academic freedom.

“We are disappointed with the judge’s ruling. However, we are not deterred. This case is about defending the Constitutional right to freedom of speech and is of fundamental importance to activists defending the environment everywhere. We will continue to fight these claims until justice is served,” said Fourie.

For further background reading, link here to 28 May 2019 Fin24 article, by Khulekani Magubane, entitled “Activists Accuse Aspiring Xolobeni Miner of Malicious Litigation”.


MARIE-AMÉLIE BRUN, Published JUNE 6, 2019, original article here

Picture credit: Frank Hui, flickr.com


After the European elections, META has great ideas to help new MEPs and potential Commissioners with five green ideas that could blossom in the next five years.

A short synopsis of the options offered:

1. A European Green New Deal

The European Union needs to get the ball rolling on a new environmental action programme – or European ‘Green New Deal’.

2. New European Commission Vice-Presidents for…

The European Commission plays a crucial role in the lawmaking process of the European Union. Various Vice-President positions already exist in the Commission, but the Environment and Climate roles are not yet represented at this level.

3. A Sustainable Development Goals strategy

17 Goals have been developed by the United Nations to achieve a sustainable future for all. These goals, called the ‘Sustainable Development Goals’ – or ‘SDGs’ – target all aspects of sustainability, from poverty to clean oceans.

4. Net zero emissions

At the end of last year the European Commission presented a strategic long-term vision of achieving a climate-neutral economy by 2050. Last month eight EU countries called for net-zero carbon emissions by 2050.

5. A ‘Paris moment’ for Biodiversity

A study carried out by the world’s top nature scientists and representatives from 132 governments warned us recently that humanity faces a global environmental emergency.

The three-year assessment into the health of our planet’s ecosystems reveals the alarming extent of global biodiversity breakdown with up to one million species set to disappear within a few decades.

Marie-Amélie Brun sums it up in her article: 5 Green Ideas for the EU in the Next Five Years

For further reading: www.meta.eeb.org

Additional Affidavits Filed in Application to Review Tendele Mine in South Africa

Friday 31 May 2019 was an important day for the case supported by The Crowd vs. Destructive Mining in Zululand. Attorney Kirsten Youens, and second Applicant and Treasurer of the community organization, MCEJO (the first Applicant), Sabelo Dladla, filed supplementary founding affidavits in the application to review and set aside at 222 square km mining right for open cast coal. 

Call to Action:

Kirsten Youens shares special moments with you, while working on the case. Do you want to know more about it, or support her legal battle?

Check out her case page on our website, here.

Ms. Kirsten Youens, attorney, and MCEJO representative, Mr. Sabelo Dladla

#lawyerinthepicture #lawapplies2all #coalkills #biodiversity #wildlife #rhino #SouthAfrica #behindthescenes #stopcoalmining #climateaction #humanrights #environmentalrights #law #big5 #nature #iMfolozi #saveouriMfolozi #coalmining

Polly Higgins: In Memoriam

3 May 2019

My dearest Polly,

At the exact time that I start writing this, your funeral starts in the UK. It’s a sad day. We are so sad to see you go. 

Yet, thousands of people are so thankful. Thankful that you stood up, dared to be brave, for our planet Earth and our common future.

We were struck by the terrible news of you being ill. Thousands of us stood with you, in thoughts, prayers, etc. and carried you through your final days.

You are one of the heroes of our times, showing leadership on what needs to be done. 
Ending the decades of ignorance and indifference on the wellbeing of our planet. Ensuring ethics and law play the role they need to play in our society. Standing up for our common mother: Earth.

Mutual Event hosted by Polly Higgins and Jan van de Venis at Springtij.nl, April 2015

Getting ecocide acknowledged in (international criminal) law, which many may have seen as fighting an uphill battle or swimming against the stream. However, you brought us closer to the summit and to the source of the stream.

We are beginning to see clearly, from where things come.

I will miss you as a friend, as a colleague and as a fellow lawyer. I will, as you often called all of us to, continue to ‘dare to be brave’.

Polly, you passed away, but your heritage is amazing. You have inspired tens to hundreds of thousands of people, started a global movement which is speeding up. I feel it is in your honor that the UK Parliament became the first in the world to declare an environment and climate emergency.

Next step, ecocide law.

It has been an honor to ride the wave of justice with you on Earth. I hope you are now riding amazing waves in a just place without pain and worries and in a pristine natural environment.

The wave you started on Earth is growing: a tidal wave is starting to arise. As Seamus Heaney said:

“History says, Don’t hope
On this side of the grave,
But then, once in a lifetime
The longed-for tidal wave
Of justice can rise up,
And hope and history rhyme”

My dearest Polly, with you hope and history rhyme. Rest in peace. We will continue. We dare to be brave.

Jan van de Venis

President, The Crowd Versus

Protect the Canadian Pacific Coast, Pass Bill C-48

Re-published by West Coast Environmental Law here, with online letter-writing tool to Canadian Senators, on 14 May 2019

For decades, First Nations, communities and residents have worked to defend the north Pacific coast from the unacceptable risk of oil spills and oil tanker traffic. And right now, Canadian Senators are considering a bill that would entrench a strong north coast oil tanker ban in law.

Bill C-48, the Oil Tanker Moratorium Act, was passed in the House of Commons and is now before the Senate, where it’s been held up for almost a year.

The oil industry is trying to kill this important legislation – and now time is running out!

Will you take a moment to write to Senators and urge them to pass Bill C-48? 

West Coast has been working for decades to secure a legal tanker ban. This bill reflects the concerns of thousands of residents in northwestern BC and beyond who worked together for many years to stop the Enbridge Northern Gateway project and prevent oil spills in the Great Bear Rainforest.

It’s a crucial step in safeguarding the sensitive ecosystems and wild salmon in the region, and the communities, Indigenous cultures and livelihoods that rely on them.

The Senate needs to hear from Canadians like you, who agree that oil tankers have no place on the north Pacific coast. It’s important for them to hear your personal stories and perspectives about why the region’s unique ecosystems, communities, and healthy local economies deserve legislated protection from the threat of oil tankers. 

Please send an email to a list of key Senators at the addresses below, expressing your strong support for Bill C-48 and telling them why.


If you’d like to know what West Coast said to the Senate, take a look at our recent written submission supporting the bill.

Bill C-48 goes a long way toward protecting the north Pacific coast from the threat of crude oil spills from large tankers, taking future proposals for major oil tanker projects like Enbridge Northern Gateway off the table for good.

Please join us in calling on Senators to pass this bill without further delay!


Gavin Smith, Staff Lawyer
West Coast Environmental Law Association
West Coast Environmental Law
200 – 2006 West 10th Avenue
Vancouver, BC
V6J 2B3 phone: 604.684.7378
fax: 604.684.1312
toll-free in BC: 1.800.330.WCEL

Environmental Watchdog Challenges Recent South Africa Ruling

29 March 2019; Published by Tony Carnie

An environmental watchdog has challenged a legal decision by a Pietermaritzburg high court judge, fearing that his ruling will encourage mining companies to disregard the country’s environmental protection laws.

The challenge has been mounted by the Cape Town-based Centre for Environmental Rights, after judge Rishi Seegobin dismissed an application in October to shut down the Somkhele coal mine — owned by Johannesburg-based Tendele Mining — on the periphery of the flagship Hluhluwe-Imfolozi Game Reserve in KwaZulu-Natal.

The centre has lodged an application to intervene as an amicus curiae (friend of the court) in an application for leave to appeal against Seegobin’s ruling.

The centre, represented by attorney Catherine Horsfield, said it was concerned that the ruling “may open the door” to companies disregarding environmental safeguards in the constitution.

The centre believes the Tendele verdict has broad national implications and could have a “profound influence” on the ability of government inspectors to monitor and enforce environmental laws in mining areas.

It could also provide “an excuse” for companies to operate outside the law and to strip legal powers from government enforcement officers.

The ruling may open the door to companies disregarding environmental safeguards …

The centre also said the judge’s punitive costs order against two community-based environmental groups would have a “chilling” legal effect that could cow other vulnerable people from mounting public-interest litigation against powerful mining companies.

In 2018, the Global Environmental Trust, the Mfolozi Community Environmental Justice Organisation and local resident Sabelo Dladla launched an interdict application against mine owners Tendele Mining, arguing that the mine was operating illegally.

Represented by attorney Kirsten Youens, they submitted that the Somkhele mine was operating with no environmental authorisation, no municipal planning approval, no waste disposal licence and no permits to shift ancestral graves.

Dladla also alleged in court papers that several homestead structures were cracking because of daily dynamite blasting at the open-pit coal mine, and several of his livestock had died or disappeared after wandering into mining land that had not been fenced off adequately.

Life had changed forever, said Dladla, with many local residents forced to leave their land and homes to make way for mining. They had lost access to grazing for cattle and other natural resources, and were also worried about the risks to their health from polluted air and water.

The mine painted a different story in court papers, denying that its operations were unlawful and arguing that nearly 1,000 mineworkers would lose their jobs if the mine was forced to close.

Seegobin threw out the application, noting that there had been a number of amendments to mining and environmental laws that took effect in 2014. He said these changes to the law also contained transitional provisions which permitted companies to continue existing operations without obtaining fresh environmental authorisation for listed activities.

If the amended laws did not contain these transitional provisions, said Seegobin, previously lawful mining operations would have been rendered illegal, overnight. “This would have been an unreasonable, insensible and un-businesslike result,” he commented.

Seegobin also suggested that senior officials of the departments of mineral resources and environmental affairs would have intervened against Tendele if they believed the mine was operating unlawfully or causing significant pollution or environmental damage.

Horsfield said the centre recognised that judges had discretion to award cost orders, but the National Environmental Management Act included a clause intended to protect people who sought assistance from the court, provided that they were acting reasonably, in the public interest or in the interests of the environment.

During a landmark public interest case involving the Biowatch Trust and the multinational group Monsanto, the Constitutional Court had reaffirmed the principle of not punishing unsuccessful litigants with crippling legal costs, provided their cases were not “frivolous, vexatious or manifestly inappropriate”.

Horsfield also attacked Seegobin’s assertion that government officials would have taken action against Tendele if they believed the company was contravening environmental obligations. There was no basis to assume that government officials were satisfied with, or had even considered the issues taking place at Somkhele mine.

Seegobin’s approach seemed “tantamount to introducing a standard of deference to functionaries” in the mining and environment departments that was not supported by law.

Responding in court papers, Tendele CEO Jan du Preez said his company did not agree with the legal arguments opposing Seegobin’s main ruling, but would not object to the centre being admitted as a friend of the court — provided it did not try to introduce new evidence.

Du Preez said his company would abandon all claims to the money awarded to it by Seegobin for legal costs.

“I hereby confirm that Tendele unconditionally abandons the costs order granted in its favour by this court…. The issue of the costs order granted in Tendele’s favour need accordingly not feature either in the amicus application, or in the application for leave to appeal,” the company said.

Seegobin has yet to make a ruling on whether he will grant leave to appeal.

This article also appeared in Business DayTimes Select on 28 March, 2019; and in SaveOurWilderness.org on 29 March 2019.

These Lawyers Stand Up for Your Rights

Posted on December 9, 2018

Lawyers work to protect human and environmental rights all over the world. On December 10 we would like to honor their work and thank four of them. 

On December 10, 1948 the United Nations General Assembly adopted the Universal Declaration of Human Rights. Since that date, we celebrate Human Rights Day every year.

This year marks the milestone 70th anniversary of this declaration.

Rights for Every Human Being

The document proclaims the rights to which every human being is entitled. No matter the race, color, religion, sex, language, political or other opinion, national or social origin, property, birth or other status.

The recognition of equal rights for all is a precondition for sustainable societies. Equality, justice and freedom prevent violence and sustain peace. Unfortunately, these rights are constantly challenged.

Standing up for our rights, or supporting others in their battles, remains essential; whoever and wherever you are.

On this special 10 December day, we present to you four extraordinary lawyers who stand up for the rights of others. They do this with long hours in cases that can change the historical legal doctrines of corporate interests and governmental policies.

1. Karey Brooks

In Canada, JFK Lawyer Karey Brooks battles in court to stop tarsands mining, to protect the world’s most important carbon sinks, and to hold the Alberta province and Canada accountable for breaking their constitutional promise to the Beaver Lake Cree First Nation.

#TarSandsTrial #cdnpoli

2. Kirsten Youens

Kirsten Youens

In South Africa, Kirsten Youens fights in court to stop the coal mining activities of the South African government that puts Zululand and its people in danger and also threatens the world’s greatest concentration of rhinos in the wilderness area of the Hluhluwe-iMfolozi Game Reserve.

#SaveOurWilderness #StopTendele #LawApplies2All

3. Pablo Fajardo Mendoza

Pablo Fajardo

In Ecuador, Pablo Fajardo Mendoza supports the Amazon people in a landmark case to legally force Chevron to create health programs for the 6 indigenous nations and repair their lands, after one of the worst environmental disasters of all times. Pablo received the 2015 Goldman prize in recognition of his long and arduous work and we are honored to help his team.

#StopChevronImpunity #StopCorporateImpunity #ChevronCleanUp

4. René Sánchez Galindo

Rene Sanchez Galindo

In Mexico, Lawyer René Sánchez Galindo fights to stop Monsanto and other multinationals from growing genetically modified or GM corn that will force all farmers to grow GM corn, will harm biodiversity, and ultimately puts Mexican cultural heritage and way of life at risk.

#MxvsGMO #MXSinOGM #KeepMaizeAuthentic