Endangered Wildlife Trust and Others v Director-General, Department of Water and Sanitation and Atha-Africa Ventures (Pty) Ltd

The First to Third Appellants appealed against the decision by the Director-General of the Department of Water and Sanitation (First Respondent) to issue a Water Use Licence (WUL) dated 7 July 2016 to Atha-Africa Ventures (Pty) Ltd (Second Respondent) for the proposed Yzermyn underground coal mine near Wakkerstroom, Mpumalanga. The WUL authorized various water uses under section 21 of the National Water Act 36 of 1998 (NWA) including taking water, impeding/diverting flow, discharging waste, disposing of waste, altering watercourses, and removing groundwater. The proposed mine would cover approximately 1,200 hectares of underground mining area with surface infrastructure of 22.4 hectares, with an estimated life of 15 years producing 2.2 million tons of coal per annum. The area is located within the Enkangala Drakensberg Strategic Water Source Area (SWSA), characterized by high-altitude grasslands, numerous wetlands, springs, and rivers including tributaries of the Assegai River. The area had been previously disturbed by agriculture, historical mining (16 old adits observed), and other activities. Only the Third Appellant submitted substantive objections during the public participation process conducted from 19 June to 30 August 2015. The First Appellant's objection was a bare statement dated 30 September 2015, only substantiated after the WUL was granted. The Second Appellant's objection dated 27 June 2016 was submitted 10 days before the WUL was granted.

• Whether the First Respondent failed to consider the likely effects on water resources and other water users as required by section 27(1)(f) and the efficient and beneficial use of water in the public interest under section 27(1)(c) of the NWA
• Whether the First Respondent failed to authorize post-closure water uses under section 21(f) and (g) of the NWA
• Whether the First Respondent failed to apply the precautionary principle as required by section 2(4)(a)(vii) of the National Environmental Management Act 107 of 1998 (NEMA)
• Whether the exemption granted under Government Notice 704 regulation 4(b) was justifiable
• Whether the First Respondent failed to consider the true socio-economic impact as required by section 27(1)(d) of the NWA
• Whether there was a failure to afford procedural fairness under section 33 of the Constitution and sections 3 and 4 of the Promotion of Administrative Justice Act 3 of 2000 (PAJA)
• Whether the First Respondent failed to consider the strategic importance of the water use under section 27(1)(i) of the NWA
• Whether consent of the landowner of farm Zoetfontein was required under section 24 of the NWA
• Whether adequate financial provision was made for post-closure water treatment and rehabilitation

Appeal dismissed. Water Use Licence confirmed subject to additional conditions: (1) Second Respondent to provide proof of financial provision made under other legislation; (2) First Respondent to review adequacy of budgetary provision within 60 days and before mining commences, and if necessary require further security under section 30 of the NWA; (3) Two-year licence reviews to include focused review of adequacy of financial provision for post-closure water treatment and remediation.

The binding legal principles established are: (1) The precautionary principle in section 2(4)(a)(vii) of NEMA applies only where two conditions precedent are satisfied: (a) the proposed activity poses a threat of serious or irreversible environmental damage, and (b) there exists scientific uncertainty as to the environmental damage. Where impacts of an activity are generally well-known scientifically (such as coal mining impacts), the principle is not triggered merely because specific volumes or magnitudes cannot be precisely predicted pre-development. (2) Section 27(1) of the NWA requires a balanced consideration of all relevant factors, including environmental protection, socio-economic development, efficient use of water, and strategic importance. No single factor is determinative. The approach must integrate environmental, social and economic considerations consistent with sustainable development as required by section 24 of the Constitution. (3) Water use licences issued under the NWA authorize water uses for the duration of the activity, including post-closure where necessary, and section 52 of the NWA provides for renewal and amendment of licences. Separate authorization for post-closure water uses is not required where the uses fall within those already authorized. (4) Financial provision for post-closure water treatment and rehabilitation must be considered within the integrated framework of section 30 of the NWA, section 24P of NEMA and the NEMA Financial Provisioning Regulations, and section 43 of the MPRDA. The water authority may rely on financial provision made under other mining and environmental legislation, but retains discretion under section 30 to require additional security where necessary for protection of water resources. (5) In a Water Tribunal appeal under section 148 of the NWA, while the hearing is de novo and new evidence may be admitted, the appeal is not a platform for a second decision regardless of merit. The decision appealed against remains the starting point, and appellants must substantiate their grounds of appeal with evidence. Strategic national policy documents, draft reports, and research studies that have not been incorporated into final approved government policy cannot be determinative in project-level licensing decisions, though they may provide relevant context. (6) The designation of an area as a Strategic Water Source Area (SWSA) does not create an absolute legal prohibition on mining or other development activities under current South African law. It indicates the need for heightened scrutiny and robust mitigation measures, but does not preclude authorizations where impacts can be adequately managed. (7) Landowner consent under section 24 of the NWA may be dispensed with where there is 'good reason', which may include the landowner's failure to respond to consultation efforts, the public interest considerations under section 27(1), and where the landowner does not himself seek to enforce the right created for his benefit. Section 24 creates a private right that must be considered alongside, but is not determinative of, the public interest factors in section 27(1).

The Tribunal made several significant non-binding observations: (1) The Tribunal expressed concern about the approach of the Appellants and their attorneys (Centre for Environmental Rights) in commissioning expert reviews only after the licence was granted in August-November 2016, when they had access to the application documents from 3 August 2015 and were aware of the application process. The Tribunal noted this appeared to be advocacy through hindsight rather than meaningful participation in the administrative process. (2) The Tribunal observed that the Centre for Environmental Rights, while acting as attorneys for the Appellants, had also participated as an interested and affected party, acknowledging participation in the 2011 WWF report and making numerous references to relevant studies in their advocacy work from 2013-2016, yet failed to submit these materials during the public participation process. (3) The Tribunal commented on the socio-economic condition of local communities, noting it is 'an indictment on the current socio-economic order that the local community remain largely poverty-stricken in the midst of the very activities of farming that the Appellants claim to be providing sustainable livelihoods.' (4) The Tribunal observed that scientific expert evidence is not exact and experts can differ significantly even when co-authoring national studies, as demonstrated by Dr Le Maître and Dr Witthüser appearing on opposite sides despite co-authoring the SWSA report. This confirms 'the inexactness of scientific evidence as an instrument to guide environmental decision-making' and highlights 'the complexity of the issues raised by this appeal.' (5) The Tribunal noted the tension inherent in environmental decision-making, quoting the ESIA report's lament about balancing mining development benefits against environmental preservation, observing this requires 'striking a fine balance between sustainably using our water resources while allowing the least environmentally invasive development activities.' (6) The Tribunal expressed the view that lack of government resources and poor enforcement of environmental legislation, while potentially serious obstacles to sustainable resource management, are not per se reasons to deny a licence to an applicant who should not be prejudiced by internal government deficiencies. (7) The Tribunal observed that the Australian Groundwater Model Guidelines Classification levels are indicators based on available data and mining progress, and a Class 3 confidence level is scientifically and mathematically impossible to achieve for a greenfield project because it requires 5-7 years of actual mining data. (8) The Tribunal commented that the appeal demonstrated a perception that environmental civil society organizations pursue an anti-development, anti-poor agenda, as articulated by community representative Nene, though acknowledged these organizations have constitutional rights to pursue their environmental protection mission. (9) The Tribunal noted that modern underground mining does not employ 'daylighting' techniques due to safety risks of rock falls, and that continuous management and design changes during mining are standard practice. (10) The Tribunal observed that international good practice requires regulators to insist on specific and realisable financial security instruments for post-mining rehabilitation that must be reviewed regularly for inflation and other variables.

This is a significant Water Tribunal decision that comprehensively addresses the application of the precautionary principle in South African environmental and water law. The Tribunal articulated that the precautionary principle requires two conditions precedent: (1) threat of serious or irreversible environmental damage, and (2) scientific uncertainty about the damage. The decision clarifies that the precautionary principle does not require zero risk or absolute scientific certainty, and does not prohibit all development in sensitive areas. It must be balanced with other sustainable development principles. The judgment provides important guidance on the interpretation and application of section 27(1) of the NWA, emphasizing that decision-makers must consider all relevant factors in a balanced manner, including both environmental impacts and socio-economic development needs. The case demonstrates the proper approach to scientific evidence in environmental decision-making, distinguishing between well-established scientific knowledge about mining impacts versus genuine scientific uncertainty. The Tribunal emphasized that catastrophizing potential impacts without scientific basis does not trigger the precautionary principle. The decision clarifies the de novo jurisdiction of the Water Tribunal under section 148 of the NWA, confirming that while the Tribunal hears appeals afresh and can admit new evidence, the appeal procedure is not a platform for disgruntled objectors to secure a different decision regardless of merit. The decision criticized the Appellants for commissioning expert reviews only after the licence was granted, rather than participating meaningfully during the public participation process. The judgment addresses the important question of financial provisioning for post-closure environmental impacts in mining, clarifying the interaction between section 30 of the NWA, section 24P of NEMA, and section 43 of the MPRDA. The Tribunal held that financial provision under one statute may be sufficient if it covers all water-related rehabilitation costs, but the water authority retains discretion under section 30 to require additional security if necessary. The case demonstrates the limited role of draft policy documents, strategic national studies, and research reports in project-level decision-making. The Tribunal held that until recommendations are incorporated into final, approved government policy, they cannot be determinative in licensing decisions. The decision affirms that mining is not absolutely prohibited in Strategic Water Source Areas (SWSAs) under current South African law, and that the designation of an area as a SWSA calls for heightened scrutiny and careful mitigation measures, but does not create a blanket prohibition. The judgment provides guidance on when landowner consent under section 24 of the NWA may be dispensed with based on 'good reason', including where the landowner fails to respond to consultation efforts and does not appeal the decision themselves.