Kangra Coal (Pty) Ltd v The Trustees of the Time Being of the Corneels Greyling Trust and Others

Kangra Coal (Pty) Ltd operated an underground coal mine at Kusipongo Colliery and applied for an integrated water use licence (WUL) from the Department of Water and Sanitation. The first and second respondents, commercial farmers operating neighbouring properties, objected to the application citing concerns about water pollution, reduction in water flow from 24 natural springs they depended on for irrigation and livestock, and potential acid mine drainage. Despite their objections, the Chief Director granted the WUL on 25 October 2021. The respondents requested reasons for the decision on three occasions (14 December 2021, 19 January 2022, and 13 April 2022) but received no response. On 12 July 2022, the respondents lodged an appeal with the Water Tribunal in terms of s 148(3) of the National Water Act 36 of 1998. Kangra contended the appeal was brought more than eight months late and was therefore invalid. The respondents applied for condonation, arguing they could not file timeously as the Chief Director failed to provide reasons despite multiple requests. Before the Tribunal could determine the appeal, in July 2023, the respondents approached the Gauteng High Court for an interdict to prevent Kangra from conducting mining and water use activities pending the appeal. The high court granted a final interdict, and Kangra appealed with leave.

• Whether the respondents had locus standi to approach the high court for an interdict against the appellant pending determination of their appeal to the Water Tribunal
• Whether the respondents satisfied the requirements for a final interdict, specifically whether they established actual or reasonably apprehended injury
• Whether the appeal to the Water Tribunal had the effect of suspending the water use licence granted to the appellant
• Whether the Water Tribunal had jurisdiction to grant condonation for late filing of an appeal in terms of s 148(3) of the National Water Act 36 of 1998
• The interpretation and application of s 32(1)(a) of the National Environmental Management Act 107 of 1998 (NEMA) in relation to standing to seek environmental protection

The appeal was upheld with costs including the costs of two counsel where so employed. The order of the high court was set aside and substituted with an order dismissing the application with costs, including the costs of two counsel where so employed.

To obtain a final interdict, an applicant must establish: (1) a clear right; (2) an injury actually committed or reasonably apprehended; and (3) the absence of similar protection by any other ordinary remedy. An applicant seeking an interdict on environmental grounds must set out facts grounding a reasonable apprehension of injury in their founding affidavit, showing a link between the unlawful conduct and the apprehended injury. Speculative or hypothetical future harm is insufficient to satisfy the requirement of reasonably apprehended injury. Applicants must stand or fall by their founding papers and must plead all material facts and legal grounds expressly, not raise them for the first time on appeal. The existence of gaps in an Environmental Authorisation does not necessarily prevent the granting of authorization, as environmental compliance is an ongoing incremental process with continuous monitoring and remedies available if actual harm occurs.

The Court made several non-binding observations: (1) The Water Tribunal lacked jurisdiction to grant condonation for late filing of appeals under s 148(3) of the NWA. The Tribunal cannot entertain applications for condonation post facto or extend the prescribed period. (2) Once the Minister grants a WUL, that decision stands until rescinded or set aside by a court of law. No other avenue can be pursued to undermine the Minister's decision, and courts should not legitimize incompetent actions that circumvent this principle. (3) The Western Cape judgment in Witzenberg Properties (Pty) Ltd v Bokveldskloof Boerdery (Pty) Ltd is not binding on other provincial divisions and is distinguishable where the dispute involves challenges to state organs rather than disputes between private entities. (4) The parties should ideally have waited for the determination of the appeal against the grant of condonation before proceeding with the current appeal, though the respondents chose to proceed. (5) A judgment of a provincial division cannot be binding on another provincial division, though it may be strongly persuasive if on all fours with the facts and law.

This case is significant for South African environmental and water law as it clarifies the requirements for obtaining interdicts against mining operations based on environmental concerns. It emphasizes that applicants must demonstrate actual or reasonably apprehended injury, not merely speculative future harm. The judgment reinforces the principle that parties must stand or fall by their founding papers and cannot ambush respondents with new legal grounds raised only on appeal. The case provides guidance on the interplay between the National Water Act and NEMA in the context of mining operations. It also addresses the incremental nature of environmental compliance and that gaps in Environmental Authorisation do not necessarily bar granting of licenses. The obiter comments regarding the Water Tribunal's lack of jurisdiction to grant condonation post facto under s 148(3) of the NWA have important implications for administrative law and the finality of ministerial decisions until set aside by courts. The judgment clarifies that private parties cannot use interdict proceedings to circumvent statutory appeal mechanisms where they have failed to comply with prescribed timeframes.