Endangered Wildlife Trust and Another v Director-General (Acting) Department of Water and Sanitation and Another

The second respondent, Atha-Africa Ventures (Pty) Ltd, owns the Yzermyn Underground Coal Mine in Mpumalanga. On 7 July 2016, the first respondent (Acting Director-General of the Department of Water and Sanitation) issued a water use licence to the second respondent valid for 15 years under Chapter 4 of the National Water Act 36 of 1998 (NWA). The appellants, two environmental non-profit organizations (Endangered Wildlife Trust and Federation for a Sustainable Environment), appealed this decision to the Water Tribunal on 1 December 2017 under s 148(1) of the NWA. The Tribunal dismissed the appeal on 22 May 2019. On 12 June 2019, the appellants appealed to the Gauteng High Court under s 149(1) of the NWA, which dismissed the appeal on 11 May 2023. The appellants obtained special leave to appeal to the Supreme Court of Appeal. The second respondent acquired the prospecting rights in 2011, and after extensive exploration and specialist studies over several years, applied for the water use licence in March 2014. After various revisions and specialist reports addressing concerns raised by the DG, and a public participation process, the licence was granted in 2016. The proposed underground mine would use the bord and pillar method, produce 2.2 million tons of coal per annum over an estimated 15-year lifespan, and create approximately 500 jobs. The second respondent had invested over US$700 million in the project over three years but had not commenced mining.

• Whether an appeal under s 149(1) of the NWA is confined to questions of law
• What constitutes a 'question of law' as opposed to a 'question of fact' in the context of s 149(1) of the NWA
• Whether the High Court failed to give an independently reasoned judgment and whether this gave rise to a reasonable apprehension of bias
• The proper interpretation of s 24 of the NWA regarding the requirement for landowner consent and what constitutes 'good reason' to dispense with consent
• Whether the Tribunal erred in finding there was provision for post-closure treatment of contaminated water
• Whether the Tribunal properly applied the precautionary principle under s 2(4)(a)(vii) of the National Environmental Management Act 107 of 1998 (NEMA)
• Whether the appeal was vexatious and whether a costs order should be made against the appellants despite their public interest status

The appeal was dismissed with costs, including the costs of two counsel where so employed.

1. An appeal under s 149(1) of the NWA is confined to questions of law, meaning questions as to what the law is on a certain issue concerning water resource management. It does not extend to questions about how undisputed law applies to particular facts, nor to challenges to factual findings by the specialist Water Tribunal. 2. Section 24 of the NWA authorizes the granting of a water use licence for underground water on land not owned by the applicant either where the landowner consents OR where there is "good reason" to do so. "Good reason" means a sound basis in light of the purposes of the NWA and the particular facts and circumstances, not necessarily a "public" reason or public purpose. 3. A court does not demonstrate bias, or give rise to a reasonable apprehension of bias, merely by incorporating portions of a party's heads of argument into its judgment, particularly where the court demonstrates impartiality by making orders in favour of the other party on separate issues. 4. Public interest litigants, including environmental organizations, are not immunized from adverse costs orders under the Biowatch principle where their conduct has been vexatious, frivolous or abusive of court processes, notwithstanding that they act out of concern for the environment.

1. The SCA observed that the precautionary principle in s 2(4)(a)(vii) of NEMA does not require unequivocal scientific certainty before decisions are taken, otherwise no development would be authorized. It must be considered together with other NEMA principles, particularly those relating to sustainable development. 2. The court noted that the very purpose of heads of argument is to convince an appellate court, and "the most flattering judgments incorporate half the skeleton [argument]" - thus incorporation of submissions is not inherently problematic. 3. The SCA observed that the appellants were preoccupied with environmental impacts to the virtual exclusion of social and economic impacts of sustainable development, presenting no site-specific information about socio-economic effects as required by s 27(1)(d) of the NWA. 4. The court commented that there comes a time when it is right to hold organizations claiming to act in the public interest to the same standards of conduct as any other litigant, particularly when represented by senior and junior counsel. 5. The SCA noted that the NEMA environmental principles do not constitute a checklist with which development must comply, but rather constitute normative guidelines, and do not preclude adverse environmental impacts but require they be avoided, minimized or remedied. 6. The court observed that opponents harassed by the worry and costs of vexatious litigation are entitled to protection, and that launching multiple proceedings against the same development raises concerns about abuse of process.

This case is significant for: 1. **Defining the scope of statutory appeals on questions of law**: It clarifies that s 149(1) of the NWA appeals are confined to questions about what the law is, not how undisputed law applies to facts. This is consistent with the specialist nature of the Water Tribunal and the availability of review proceedings under PAJA. 2. **Water law interpretation**: It authoritatively interprets s 24 of the NWA, holding that "good reason" to dispense with landowner consent does not require a "public" purpose but rather a sound basis considering the NWA's purposes and circumstances. 3. **Limits of environmental public interest litigation**: While recognizing the importance of environmental rights under s 24 of the Constitution, the judgment confirms that public interest litigants are not immune from adverse costs orders where litigation is vexatious, lacks merit, or abuses court processes. 4. **Judicial efficiency and resource allocation**: The judgment emphasizes that scarce judicial resources should not be wasted on misconceived appeals, particularly where alternative remedies (review applications) exist. 5. **Balancing environmental protection with development**: The case illustrates the courts' approach to harmonizing environmental protection with economic development and social upliftment, as required by the NWA and NEMA. 6. **Standards for alleging judicial bias**: It reinforces the high threshold for establishing bias, particularly where a court comprising two judges makes findings against the alleging party on some issues but in their favour on others.