SCA dismisses 'meritless' appeal by two environmental organisations

The Supreme Court of Appeal has dismissed with costs an appeal by two environmental organisations against the awarding of a water use licence issued to Atha-Africa Ventures (Pty) Ltd in 2016.

The SCA said the Endangered Wildlife Trust and the Federation for a Sustainable Environment vexatiously pursued the appeal under section 149(1) of the National Water Act (NWA) and it had no merit.

The court said the organisations could not be insulated from costs orders regarding two considerations.

One was the Biowatch principle, namely that the general rule in constitutional litigation is that an unsuccessful litigant ought not to be ordered to pay costs to the state. 

The organisations had argued that the high court proceedings were instituted to vindicate environmental rights which were genuine and not frivolous. The second was that they acted reasonably in the protection of the environment.

The SCA said Biowatch did not assist the organisations. 

The Constitutional Court, in the Biowatch case, said a party should not be immunised from appropriate sanctions if its conduct had been “vexatious, frivolous, professionally unbecoming or in any other similar way abusive of the processes of the court”.

“That is the case here. The appellants, who throughout have been represented by senior and junior counsel, vexatiously pursued the section 149(1) appeal, which has no merit,” said judge of appeal Ashton Schippers in a unanimous judgment of the full bench.

Atha-Africa Ventures, the owner of Yzermyn Underground Coal Mine outside Wakkerstroom in Mpumalanga, had acquired coal-prospecting rights to an area of 8,360ha, covering 12 privately owned farms in Mpumalanga. In 2013, it was granted a mining right in respect of only five farms.

Because the company required the water use licencee to commence mining, it engaged various experts and obtained several specialist reports, including a hydrological, socioeconomic, geohydrology impact and a biodiversity baseline and impact assessment.

It also obtained a numerical groundwater model report and conducted a public participation process as part of the application for the licence. These assessments informed the licencee conditions.

In July 2016 the director-general (DG) of the department of water & sanitation issued the licence, valid for 15 years, to Atha-Africa. The licencee authorised specified water-use activities in relation to the mining to be conducted.

In the same year, the two organisations appealed the DG’s decision to issue the licence to the Water Tribunal.

They claimed, among others, that the DG failed to consider the effect of the proposed water use on the water resource; that the DG failed to authorise certain water uses associated with the closure of the mine; that the consent of the owner of a farm regarding the use of underground water had not been obtained; and that the DG failed to apply environmental principles in the National Environmental Management Act.

In 2019, the tribunal dismissed the appeal, concluding, among others, that the findings and scientific reviews by the appellants’ experts were unsubstantiated and were demonstrated in evidence to be shallow. The tribunal found that sound methods were used in the Atha-Africa's wetland and hydrological studies.

The SCA said the organisations appealed the tribunal’s decision to the Pretoria high court in terms of section 149(1) of the NWA, which permits an appeal only on a question of law.

The high court dismissed the organisations' appeal with costs. The SCA granted the appellants special leave to appeal.

The SCA found in its judgment that most of the appeal grounds did not raise questions of law.

It said these were questions of fact based on the evidence before the tribunal, and could not form the subject of an appeal in terms of the NWA.

“The appeal lodged by the appellants has little or no basis in law.”

The court also noted the appellants lodged the appeal regardless of the consequences, including the inconvenience to and exorbitant costs that would be incurred by the department and Atha-Africa.

The court said in 2011, Atha-Africa was invited to invest in South Africa. It has made an investment of US$40m in equity and prospecting rights to engage in coal mining. It has spent US$61m solely on specialist studies, to secure the necessary authorisations.

“More than 10 years later no mining has started and (Atha-Africa) has not realised any return on its investment.”

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