ug?gsmi -..- IN THE HIGH COURT OF SOUTH AFRICA 522% GAUTENG DIVISION, PRETORIA nit-Ii". may if 6 100 0779 TEL 08 Case no.: ?7 32 75//6? In the matter between ?Ea-#74? . Ch?xIFirst Tpplicant "affr?JE-TI .- EARTHLIFE AFRICA JOHANNESBURO I. 201.5 I0 LEGUUI I I I I BIRDLIFE SOUTH AFRICA MINING AND JUSTICE COMMUNITY NETWORK OF.. SOUTH AFRICA Third Applicant ENDANGERED WILDLIFE TRUST Fourth Applicant FEDERATION FOR A SUSTAINABLE ENVIRONMENT Fifth Applicant GROUNDWORK Sixth Applicant ASSOCIATION FOR WATER AND RURAL DEVELOPMENT Seventh Applicant BENCH MARKS FOUNDATION Eighth Applicant and MINISTER OF MINERAL RESOURCES First Respondent DIRECTOR-GENERAL: DEPARTMENT OF MINERAL RESOURCES Second Respondent Page 2 MINISTER OF ENVIRONMENTAL AFFAIRS Third Respondent MEC: DEPARTMENT OF AGRICULTURE, RURAL DEVELOPMENT, LAND, AND ENVIRONMENTAL AFFAIRS MPUMALANGA Fourth Respondent ATHA-AFRICA VENTURES (PTY) LTD Fifth Respondent NOTICE OF MOTION KINDLY TAKE NOTICE that the Applicants intend to make application to the above Honourable Court on a date determined by the Registrar for an order in the following terms: 1. reviewing and setting aside the decision taken by the Minister of Mineral Resources reflected in a letter dated 14 April 2015 addressed to the Fifth Respondent; 2. reviewing and setting aside the decision taken by the Director? General: Department of Mineral Resources (D6) to grant a mining right to the Fifth Respondent as reflected in a letter dated 19 September 2014 addressed to the Fifth Respondent (the mining right), to the extent that the decision was not replaced in its Page 3 entirety by the decision taken by the Minister of Mineral Resources referred to in 1 above; remitting the Fifth Respondent?s application for the mining right to the DG for reconsideration; directing the DG not to decide the Fifth Respondent?s application for the mining right unless and until the Fifth Respondent?s environmental management programme has been approved in terms of the now repealed section 39(4)(a) of the Mineral and Petroleum Resources Development Act, 28 of 2002; directing the DG not to decide the Fifth Respondent?s application for the mining right unless and until environmental authorisation has been issued to the Fifth Respondent in terms of the National Environment Management Act, 107 of 1998; alternatively to 5 above, directing the DG (or his delegate) to consult with the Department of Environmental Affairs before making a decision in respect of the Fifth Respondent?s application for the mining right, and to have due regard to, and take into account, the views, comments, opinions and position of the Department of Environmental Affairs when making such a decision; Page 4 directing the DG (or his delegate) to consult with the Department of Water and Sanitation before making a decision in respect of the Fifth Respondent?s application for the mining right, and to have due regard to, and take into account, the views, comments, opinions and position of the Department of Water and Sanitation when making such a decision; directing the DG (or his delegate) to consult with the Mpumalanga Tourism and Parks Agency before making a decision in respect of the Fifth Respondent?s application for the mining right, and to have due regard to, and take into account, the views, comments, opinions and position of the Mpumalanga Tourism and Parks Agency when making such a decision; directing the D6 (or his delegate), when deciding whether to grant the Fifth Respondent?s application for a mining right to have due regard to, and consider, the status of certain of the properties which are the subject of the mining rights application as:? 9.1 a protected environment under 9.2 a national freshwater ecosystem priority area under the Atlas of Freshwater Ecosystem Priority Areas endorsed by 10. Page 5 the Department of Environmental Affairs and the Department of Water Affairs and Sanitation, 9.3 a critical terrestrial and aquatic biodiversity area under the Mpumalanga Biodiversity Conservation Plan endorsed by Development, the MEC for Rural Agriculture, Environmental Affairs and Tourism for Mpumalanga Province; and 9.4 an endangered ecosystem under the List of Ecosystems that are Threatened and in Need of Protection published by the Minister of Environmental Affairs under the National Environmental Management: Biodiversity Act No. 10 of 2004; directing the DG (or his delegate), when deciding whether to grant the Fifth Respondent?s application for a mining right, to have due regard to, and consider, the cumulative impacts of existing mining, and mining as proposed by the Fifth Respondent, on the Enkangala Drakensberg Strategic Water Source Area, including the catchment areas of the Pongola, Tugela and Vaal River Systems; Page 6 11. That the First and Second Respondents be ordered to pay the Applicants? costs, with those costs to be paid jointly and severally together with any of the respondents who oppose the relief sought in the application; 12. further and/or alternative relief. TAKE NOTICE FURTHER that the affidavit of PHILLIPINE MAKOMA LEKALAKALA will be used in support of this application. TAKE NOTICE FURTHER that the Applicants have appointed the address of Centre for Environmental Rights, care of its correspondent attorneys, DU PLESSIS AND KRUYSHAAR INCORPORATED, Suite No. 2, Route 21 Corporate Park, 118 Sovereign Drive, Irene, Pretoria as being the address at which they will accept notice and service of all process in these proceedings. TAKE NOTICE FURTHER that the Respondents are called upon to show cause why the relief should not be granted. TAKE NOTICE FURTHER that the First and Second Respondents are required to despatch within fifteen (15) days of receipt of this Notice of Motion to the Registrar of this Honourable Court the record of decision identified in paragraphs 1 and 2, together with such reasons as they may desire to give or are in law required to give, and to notify the Applicants that they have done so. TAKE NOTICE FURTHER that the Applicants shall be entitled,within ten (10) days after the Registrar has made the Record available to them, to deliver a Notice and accompanying affidavit amending, adding to or varying the terms of this Notice of Motion and founding affidavit. Page 7 TAKE NOTICE FURTHER that any Respondent desiring to oppose this application, must: 1. within 15 (fifteen) days after receipt of this Notice of Motion, or if service is effected on 3 Respondent at a place more than 100 miles from the court, then within 21 (twenty-one) days after receipt of the Notice of Motion, or within 15 (fifteen) days after receipt any amendment to this Notice of Motion, deliver notice to the Applicants? attorneys of such intention to oppose and must in such notice appoint an address within 15 (fifteen) kilometres of the office of the Registrar at which it will accept notice and service of all process in these proceedings; 2. within 30 (thirty) days after the expiry of the time referred to in Uniform Rule 53(4) of the Uniform Rules of Court, deliver any affidavit it may desire to deliver in answer to the allegations made by the Applicants. KINDLY PLACE THE MATTER ON THE ROLL FOR HEARING ACCORDINGLY. DATED at PRETORIA this of day of SEPTEMBER 2015. ALA CENTRE FBRJENVIRONMENTAL RIGHTS Applicants? Attorneys 2nd Floor, Springtime Studios 1 Scott Road Observatory Cape Town Tel: 021 447 1647 Email: chorsfield@cer.orq.za Page 8 8 Care of: DU PLESSIS AND KRUYSHAAR INCORPORATED Suite No. 2, Route 21 Corporate Park 118 Sovereign Drive Hene Pretoria Tel: 0861 000 779 Fax: 086 548 0837 Email: kruvshaar@dupkruvs.co.za Ref: Rentia Kruyshaar TO: THE REGISTRAR GAUTENG HIGH COURT PRETORIA AND TO: MINISTER OF MINERAL RESOURCES Block 20, 4th Floor Trevenna Campus Corner of Francis Beard and Meintjies Streets Sunnyside PRETORIA Fax: 012 444 3145 Email: clo THE STATE ATTORNEY SALU Building 316 Thabo Sehume Street PRETORIA Tel: 012 309 1500 Fax: 012 309 1649 AND TO: DIRECTOR GENERAL: DEPARTMENT OF MINERAL RESOURCES Department of Mineral Resources Block 20, 4th Floor Trevenna Campus Corner of Francis Beard and Meintjies Streets Sunnyside PRETORIA Fax: 012 341 2228 Email: pieter.alberts@dmr.gov.za AND TO: MINISTER OF ENVIRONMENTAL AFFAIRS Cnr. Steve Biko and Soutpansberg Road Environment House 473 Steve Biko Arcadia PRETORIA Fax: 012 328 4254 Email: GRamutshila@environment.gov.za Page 9 cIo THE STATE ATTORNEY SALU Building 316 Thabo Sehume Street PRETORIA Tel: 012 3091500 Fax: 012 309 1649 AND TO: MEC: AGRICULTURE, RURAL DEVELOPMENT, LAND AND ENVIRONMENTAL AFFAIRS MPUMALANGA PROVINCE 7 Government Boulevard Building 6, 2nd floor Riverside Park MBOMBELA (previously, Nelspruit) Fax: 013 766 8437 Email: AND TO: ATHA-AFRICA VENTURES (PTY) LTD 8th Floor, Sinosteel Plaza 159 Rivonia Road SANDTON Fax: 011 784 7467 Email: morqam.munsamv@athaqroup.in IO IN THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, PRETORIA In the matter between EARTHLIFE AFRICA JOHANNESBURG BIRDLIFE SOUTH AFRICA MINING AND JUSTICE COMMUNITY NETWORK OF SOUTH AFRICA ENDANGERED WILDLIFE TRUST FEDERATION FOR A SUSTAINABLE ENVIRONMENT GROUNDWORK ASSOCIATION FOR WATER AND RURAL DEVELOPMENT BENCH MARKS FOUNDATION Case n0.: First Applicant Second Applicant Third Applicant Fourth Applicant Fifth Applicant Sixth Applicant Seventh Applicant Eighth Applicant iN?rJ RN and MINISTER OF MINERAL RESOURCES DIRECTOR-GENERAL: DEPARTMENT OF MINERAL RESOURCES MINISTER OF ENVIRONMENTAL AFFAIRS MEC: DEPARTMENT OF AGRICULTURE, RURAL DEVELOPMENT, LAND, AND ENVIRONMENTAL AFFAIRS MPUMALANGA ATHA-AFRICA VENTURES (PTY) LTD First Respondent Second Respondent Third Respondent Fourth Respondent Fifth Respondent FOUNDING AFFIDAVIT l, the undersigned PHILLIPINE MAKOMA LEKALAKALA do hereby make oath and say that 2 NW l2. 1. I am an adult female employed as Senior Programmes Officer of the Sustainable Energy and Climate Change Partnership and Branch Co- ordinator of Earthlife Africa Johannesburg, a non-governmental organisation that challenges environmental degradation and aims to promote a culture of environmental awareness and sustainable development. ELA is a non-profit organisation in terms of the Non- Profit Organisations Act, with NPO number 004-159. Its offices are at 87 De Korte Street, 5th floor Heerengracht Building, Braamfontein, Johannesburg. 2. The facts and circumstances set out in this affidavit fall within my personal knowledge and belief, except where the context indicates otherwise, and are true and correct. Where I make submissions of a legal nature, I do so on the advice of the Applicants? legal representatives, which advice I believe to be true and correct. 3. I am duly authorised to depose hereto. THE PARTIES The Applicants 4. The First Applicant is EARTHLIFE AFRICA JOHANNESBURG (EarthLife), a non-profit organisation with NPO number 004-159. EarthLife challenges environmental degradation and aims to promote a culture of environmental awareness and sustainable development. It TWN NV also seeks to improve the quality of life of vulnerable people in South Africa through assisting civil society to have greater impact on environmental governance by understanding and defending their constitutional rights, specifically those enshrined in section 24 of the Constitution of the Republic of South Africa. Its address is 5th Floor 87 De Korte Street, Braamfontein, Hereengracht Building, Johannesburg. The Second Applicant is SOUTH AFRICA, a non-profit and public benefit organisation registered in terms of the laws of the Republic of South Africa with NPO registration number 001?298 MPG and P80 exemption number 930 004 518, with its head office at 239 Barkston Drive, Blairgowrie, Johannesburg. It is an independent nature conservation organisation with the mission to promote the enjoyment, conservation, study and understanding of wild birds and their habitats. BirdLife South Africa has over 6000 members in 32 bird clubs throughout South Africa. BirdLife South Africa is a partner in the Grasslands Programme, which is a partnership between government, non-governmental organisations and the private sector to mainstream biodiversity into the Grasslands Biome, with the intention to balance biodiversity conservation and development of protected areas in a production landscape. The Third Applicant is MINING AND ENVIRONMENTAL JUSTICE COMMUNITY NETWORK OF SOUTH AFRICA (MEJCON-SA), a non- l3 profit voluntary organisation with its administrative address at 0/0 Centre for Environmental Rights, 2nd Floor, Springfield Studios, 1 Scott Street, Observatory, Cape Town. MEJCON-SA was constituted in October 2012 with the main objective of promoting and defending the environmental and human rights of communities that are both directly and indirectly affected by mining; and to ensure the sustainable use of mineral resources. The Fourth Applicant is ENDANGERED WILDLIFE TRUST (EWT), a non-government non-profit organisation and a public benefit organisation with NPO Number 015-502 and P80 number 930 001777. EWT has its physical address at Building K2, Ardeer Road, Pinelands Office Park, Modderfontein, Gauteng. EWT is a fully accredited member of the Union of Conservation of Nature and is dedicated to conserving threatened species and ecosystems in southern Africa. The Fifth Applicant is FEDERATION FOR A SUSTAINABLE ENVIRONMENT (FSE), a registered non-profit company with registration number 2007/033134/08 and NPO number 062986-NPO. FSE has its physical address at 8 Palladio, corner of Street and Roux Avenue, Beverley Gardens, Johannesburg. The main objective is promoting the ecological sustainability of development and the wise use of natural resources in South Africa. ZWN 10. The Sixth Applicant is GROUNDWORK, a non-profit environmental justice service and developmental organisation with NPO number 045? 235-NPO. GroundWork has its physical address at 6 Raven Street, Pietermaritzburg. GroundWork seeks to improve the quality of life of vulnerable people in South Africa, and increasingly in Southern Africa, through assisting civil society to have a greater impact on environmental governance. GroundWork places particular emphasis on assisting vulnerable and previously disadvantaged people who are most affected by environmental injustices. The Seventh Applicant is ASSOCIATION FOR WATER AND RURAL DEVELOPMENT (AWARD), a non-profit organisation with company 98/0301 1/08 and organisation registration Number non-profit registration Number 008 821. Its physical address is at Number 14 Safari Junction, Hoedspruit, Limpopo. AWARD specialises in participatory, research-based project implementation aimed at addressing issues of sustainability, inequity, and poverty through building natural-resource management competence and sustainable water-based livelihoods. vision is to contribute to a more sustainable world and in particular to a democratic South Africa where the principles of equity and sustainability are upheld and strengthened through building active civil society participation in wise water and biodiversity stewardship, management and governance. IS 11. The Eighth Applicant is BENCH MARKS FOUNDATION, a non-profit, faith-based organisation owned by the churches in South Africa, with its physical address at 6th Floor, Khotso House, 62 Marshall Street, Marshalltown, Johannesburg, South Africa, 2017. The Bench Marks Foundation is committed to providing leadership and advocacy on issues regarding benchmarking of good corporate governance, ethical and socially responsible investment as well as linking people and institutions committed to these ideals. The vision of the Bench Marks Foundation is to promote corporate social responsibility and socially responsible investment. The Respondents 12. The First Respondent is the MINISTER OF MINERAL RESOURCES (the Minerals Minister) of Building 20, Trevenna Campus, 75 Meintjies Street, corner of Meintjies and Francis Baard Streets, Sunnyside, Pretoria. The Minerals Minister is cited by virtue of having taken a decision in terms of section 103(4)(b) of the Mineral and Petroleum Resources Development Act, 28 of 2002 (MPRDA) to amend a decision of the Director General: Department of Mineral Resources (acting under a power delegated by the Minerals Minister), to grant a mining right in terms of section 23 of the MPRDA, alternatively to withdraw the decision of the DG and to replace it with a fresh grant of the mining right in question in terms of section 23 of the MPRDA. [6 13. 14. 15. The Minerals Minister is also cited as one of the two Cabinet Ministers whose written permission is required in terms of section 48(1)(b) of the National Environmental Management: Protected Areas Act, 57 of 2003 (NEMPAA) for a person to conduct commercial mining in a protected environment declared as such in terms of section 28 of NEMPAA. The Second DIRECTOR GENERAL: Respondent is the DEPARTMENT OF MINERAL RESOURCES (the DG)(the of Building 20, Trevenna Campus, 75 Meintjies Street, corner of Meintjies and Francis Baard Streets, Sunnyside, Pretoria. The DG is cited in his official capacity as the delegate of the Minister authorized to grant or refuse mining rights applications in terms of section 23 of the MPRDA, as provided for in the delegation of powers dated 12 May 2004 made in terms of sections 103(1) and (2) of the MPRDA. The Third Respondent is the MINISTER OF ENVIRONMENTAL AFFAIRS of Environment House, 473 Steve Biko and Soutpansberg Road, Arcadia, Pretoria. The Minister of Environmental Affairs is cited by virtue of the interest she has in the application arising from her statutory duties and powers under NEMPAA, including but not limited to, her written permission also being required in addition to that of the Minerals Minister) in terms of section 48(1)(b) of NEMPAA for a person to conduct commercial mining in a protected environment declared as such in terms of section 28 of NEMPAA. .ZWN 16. 17. The Fourth Respondent is the MEC: AGRICULTURE, RURAL DEVELOPMENT, LAND AND ENVIRONMENTAL AFFAIRS MPUMALANGA PROVINCE of 7 Government Boulevard, Building 6, 2nd floor, Riverside Park, Extension 2, NELSPRUIT. The MEC is cited by virtue of the interest he has in the application arising from his powers to declare provincial protected areas in terms of NEMPAA and to withdraw such declarations. The Fifth Respondent is ATHA-AFRICA VENTURES (PTY) LTD a private company registered in terms of the laws of South Africa, with registration number 2004/020746/07 and with its registered address at 8th Floor, Sinosteel Plaza, 159 Rivonia Road, Sandton, Johannesburg, (AAV). INTRODUCTION AND NATURE OF THE APPLICATION 18. On 22 January 2014 the Member of the Executive Council for the Department of Economic Development and Tourism, Mpumalanga, acting in terms of section and of NEMPAA, by notice in the Mpumalanga Provincial Gazette, declared a number of areas as protected environments and assigned names to them, including the Mabola Protected Environment near Wakkerstroom in Mpumalanga (the MPE). I8 19. 20. 21. 22. 23. 10 The motivation for, and purpose of, declaring the MPE included protecting this environmentally sensitive, unique area which has irreplaceable biodiversity against coal mining. A mere few months after declaration of the MPE, in a letter dated 19 September 2014, the DG notified AAV that, subject to conditions pertaining to the environment, it had been granted a right in terms of section 23(1) of the MPRDA to mine for coal in respect of a number of properties listed in the letter. At least three of the properties over which the mining right was granted fall within the MPE, and a significant portion of the MPE is covered by the mining rights now held by AAV. Furthermore, all but two of the properties fall within the Wakkerstroom Wet Grasslands Area (the WWGA), which is the subject of an application made by the Mpumalanga Tourism and Parks Agency (MTPA) to the Minerals Minister in terms of section 49 of the MPRDA. That application, a multi-stakeholder initiative to protect this area, asks the Minerals Minister to declare the WWGA as an area in which mining is prohibited due to its environmental significance and sensitivity. (See paragraphs 53 to 55 below.) On 1 April 2015 the Applicants lodged an internal appeal in terms of section 96 of the read with Regulation 74 of the Regulations l?i MW 24. 25. 26. 27. 11 to the MPRDA, against the decision. The Minerals Minister is the appeal authority. A copy of the internal appeal is annexed marked In the light of the extreme environmental sensitivity of the area, the Applicants simultaneously lodged an application in terms of section 96(2) of the MPRDA requesting the Minerals Minister to suspend the mining right pending the outcome of the appeal. Unbeknownst to the Applicants, within days of receiving notification of the grant of the mining right, AAV submitted a request to the for two of the conditions pertaining to the environment to be amended on the basis that they were impossible to abide by, and posed a significant threat to the entire mining project. In a letter dated 14 April 2015, after the internal appeal had already been lodged, the Minerals Minister notified AAV that in terms of section 103(4)(b) of the MPRDA he was thereby amending the decision made by the DG on 19 September 2014 to grant a mining right to AAV subject to the conditions contained in the ?granting? letter. (The CER received this letter from the DMR on 22 May 2015 pursuant to the internal appeal process). In those circumstances, the Applicants? attorneys sent a letter dated 26 June 2015 to the Directorate: Legal Services, notifying the DMR 28. 29. 12 that the Applicants intended to launch review proceedings against the Minerals Minister?s decision and requesting that the internal appeal be held in abeyance pending the outcome of the review. This is an application for judicial review in terms of the Promotion of Administrative Justice Act, 3 of 2000 (PAJA) of the Minerals Minister?s decision. The primary relief which the Applicants seek is the setting aside of the Minerals Minister?s decision, as Well as the decision of the DG taken on 19 September 2014 to grant the mining right to AAV to the extent that it was not replaced in its entirety by the Minerals Minister?s decision. The Applicants also seek ancillary relief to ensure that, if the primary relief is granted, the defects in these decisions are remedied when the DG reconsiders application for a mining right. STANDING 30. The Applicants have the necessary standing to bring this application in terms of section 38(d) of the Constitution of the Republic of South Africa, 1996 (the Constitution) and NEMA, which is the framework environmental legislation enacted to give effect to the environmental right in section 24 of the Constitution. 2l ,3 22. 31. Sections 32(1)(d) and of NEMA confer standing on any person or group of persons to seek appropriate relief in respect of NEMA or any provision of a specific environmental management act, or any other statutory provision concerned with the protection of the environment or the use of natural resources in the public interest and in the interests of protecting the environment. 32. The MPRDA was enacted, among other things, to give effect to section 24 of the Constitution by ensuring that the nation?s mineral and petroleum resources are developed in an orderly and ecologically sustainable manner while promoting justifiable social and economic development. 33. As appears from the citation of the Applicants above, they are all civil society and community based organisations concerned with protection of the environment and sustainability in the public interest. THE ENVIRONMENTAL SIGNIFICANCE AND LEGAL PROTECTION OF PROPERTIES IN RESPECT OF WHICH THE MINING RIGHT WAS GRANTED The declaration of the MPE under NEMPAA 34. NEMPAA was enacted to protect, manage and conserve South Africa?s biodiversity. Its objectives include, among other things, the declaration 35. 36. 37. 38. 14 and management of protected areas and effecting a national system of protected areas. The system of protected areas includes national parks, world heritage sites and marine protected areas. It also includes protected environments. A protected environment may only be declared to meet the purposes specified in section 28(2) of NEMPAA. A public consultation process prescribed in NEMPAA must also be followed before a protected environment is declared. The declaration of the MPE was the culmination of the multi- stakeholder Grasslands Programme, launched in 2008 as a partnership between government, non-governmental organisations and the private sector to mainstream biodiversity conservation into the Grassland Biome. The Grassland Biome is one of 9 recognised biomes in South Africa, namely the Albany thicket, desert, forests, fynbos, grasslands, Indian Ocean coastal belt, Nama-Karoo, Savanna and Succulent Karoo biomes. Biomes are large ecological units characterised by dominant vegetation structure. Only 2% of South Africa?s Grassland Biome was conserved in 2009. The Programme was catalysed through an $8.3m investment from the Global Environment Facility, managed by the United Nations 2% 39. 40. 41. .5 2.4. Development Programme and implemented by the South African National Biodiversity Institute (SANBI) and approximately 26 partner organisations. Following the launch of the Grasslands Programme in 2008, SANBI, the MTPA and other partner organisations, including the World Wide Fund for Nature South Africa (WWF 8A) and BirdLife South Africa, embarked on a process to attain legal protection for the most threatened Grassland Biomes in South Africa. The Wakkerstroom/Luneburg grasslands was identified by the various stakeholders as such a biome. As most of the land comprising this biome is privately owned, it was decided that the declaration of a protected environment under NEMPAA in respect of this area would afford the best protection to that particular biome. The land owners were consulted about a proposed declaration of a protected environment in respect of their land in a process that lasted roughly five years. Prospecting rights holders, including AAV, were also consulted. By 2013, all of the affected land owners had given their written consent for the declaration of the MPE. The proposed declaration was unsuccessfully opposed by AAV. 42Notices of intention to declare the MPE were published on 10 May 2013 and 9 August 2013. The MTPA submitted a comprehensive motivation in support of the declaration of the proposed protected environment dated January 2013. A copy of the motivation is ?Annexure 3? to the internal appeal. The MTPA is established in terms of the Mpumalanga Tourism and Parks Agency Act of 2005, Act No. 5 of 2005 (MTPA Act). The entity came into existence on 1 April 2006 following the merger of the now defunct Mpumalanga Parks Board and Mpumalanga Tourism Authority. Section 3 of the MTPA Act defines the Objective of the MTPA as follows: ?To provide for the sustainable management and promotion of tourism and nature conservation in [Mpumalanga] and to ensure the sustainable utilisation of natural resources.? In terms of section of the MPTA Act, in pursuing its objects, the MTPA shall 46.1 provide for effective management and conservation of bio- diversity and eco-systems within the Province; 46.2 develop and ensure effective management of protected areas; 46.3 foster, promote and sustainably develop and market tourism; 46.4 promote and create socio-economic growth and transformation within the tourism and conservation industry, thereby creating .7 2?6 economic and employment opportunities for previously disadvantaged individuals and local communities in the Province. 47. The motivation for the declaration of the MPE included the following: 47.1 The National Protected Areas Expansion Strategy 2008 (SANBI and DEAT the then Department of Environmental Affairs and Tourism) identified the area of the proposed MPE as part of a larger area identified for the protected area expansion within the grassland biome. The main object of the National Protected Areas Expansion Strategy is to give effect to South Africa?s obligations under the Convention of Biological Diversity 1992 (signed by South Africa on 4 June 1993 and ratified by it on 2 November 1995) to expand its protected areas network in order to achieve ecological sustainability and increased resilience to climate change. 47.2 The area has also been identified within the Mpumalanga Protected Areas Expansion Strategy as a priority area for protected areas expansion and contains vast un-fragmented grasslands and irreplaceable biodiversity features in terms of the Mpumalanga Biodiversity Conservation Plan 2006. 47.3 The area is also a critically important and high yielding water catchment. 48. 49. 50. 18 7 47.4 The proposed MPE forms part of the broader project of the National Grasslands Programme, under the auspices of SANBI and 47.5 The MPE falls within an area listed in section 52 of the National Environmental Management: Biodiversity Act of 2004 as an endangered ecosystem (The Wakkerstroom/Luneburg Grasslands Threatened Ecosystem). in its motivation, the MTPA argued in favour of land use in the area that is compatible with biodiversity conservation, such as ecotourism and livestock farming. Coal mining was identified as a significant risk to the conservation of this critical biodiversity area. After the consultation process, the MPE was declared under section 28 of NEMPAA by notice in the Province of Mpumalanga Provincial Gazette on 22 January 2014. A copy of the Gazette is ?Annexure 2? to the internal appeal. As appears from the notice pertaining to the MPE, the MPE comprises a total of 21 farms, including the following farms over which mining right was subsequently granted: Portion 1 of Kromhoek 93 HT (204.3073 hectares), Remainder of Kromhoek 93 HT (980.4206 hectares), Goedgevonden 95 HT (739.4455 hectares) and Remainder of Yzermyn 96 HT (826.1608 hectares). 2w? 19 51. The notice also lists the purposes of the declaration of the MPE, in accordance with the provisions of NEMPAA, as follows:- 51.1 to enable the owners of the land to take collective action to conserve biodiversity on their land and to seek legal recognition therefor; 51.2 to protect the area if the area is sensitive to development due to its biological diversity, natural characteristics, scenic and landscape value and the provision of environmental goods and services; 51.3 to protect a specific ecosystem and to ensure that the use of natural resources in the area is sustainable. 52. One of the ways in which NEMPAA affords such protection as described above is to place restrictions on activities in protected environments. In terms of section despite other legislation, no person may conduct commercial prospecting, mining, exploration, production or related activities in a protected environment without the written permission of the Minister of Environmental Affairs and the Minerals Minister. APPLICATION BY MTPA TO MINERALS MINISTER TO PROHIBIT MINING IN THE WAKKERSTROOM WET GRASSLANDS AREA (WWGA) AND REPRESENTATIONS THAT ACTION HAS BEEN TAKEN TO PROHIBIT MINING ?2 "7 ?rer 53. 54. 55. 56. 20 1?1 Three years before the MTPA published its notice of intention to declare the MPE, in April 2010, the MTPA submitted an application to the DMR in terms of section 49 of the for the Minerals Minister to declare the WWGA as an area in which mining is prohibited. In August 2011 the MTPA re-submitted the section 49 application. It contains a detailed analysis of the importance of the WWGA including that:- 54.1 the area is critically important from a water production perspective; 54.2 the area is largely classed as irreplaceable by the Mpumalanga Biodiversity Conservation Plan and thus crucial for the achievement of provincial and national conservation targets due to the biodiversity features located there; 54.3 the area is located in an endangered ecosystem; and 54.4 the area falls within provincial and national priority protected area expansion ZOHGS. In the light of the above, the extremely high environmental significance and sensitivity of the MPE and the WWGA is evident. It is also abundantly clear that the MPE was declared to protect this area?s unique and irreplaceable biodiversity. After the application was submitted, on 31 August 2010, the then Minister of Mineral Resources imposed a moratorium on the granting of 57. 58. 21 all prospecting rights (GN R768 in GG 33511 of 31 August 2010). That moratorium was extended on 28 February 2011 for one month until 31 March 2011, except for Mpumalanga where the moratorium was extended to 30 September 2011 (GN R160 in GG34057 of 28 February 2011 as amended by GN R287 in GG 34171 of 31 March 2011). At the time of the extension in February 2011, the then Minister of Mineral Resources was quoted as telling a media briefing on 8 February 2011 that the reason for not lifting the moratorium in Mpumalanga was that the DMR had ?challenges bigger than what we expected, so we will lift eight provinces, and Mpumalanga will for two to three months before we lift the moratorium.? According to the Minister, the biggest challenge in Mpumalanga was environmental matters, ?issues of ecology?. ?You find sensitive areas where rights have been granted,? she was quoted as saying. ?We intend to address that matter, hence we are not going to lift the moratorium, so as to make sure that we reapond to the challenges of nature. Unfortunately rights were granted, but we?ll have to address those issues.? She said her department was working closely with the Department of Environmental Affairs (DEA). A copy of the article is annexed marked The Annual Report for 2011/12 states that ?[t]he previous extension of the moratorium in Mpumalanga was due to the complex nature of environmental challenges in that province. It culminated in 30 59. 60. 22 over 41 Flights that are located in Wakkerstroom and Chrissiesmeer being identified as those belonging to the category of environmentally sensitive areas and consequently action has been taken to prohibit mining within those areas.? (our underlining). A copy of the front page of the annual report and the relevant extract are ?Annexure 4? to the internal appeal. This same statement was also relayed by the then Minister of Mineral Resources to the National Council of Provinces during her Budget Vote Speech for the DMR on 24 May 2012: ?Honourable members would recall that we had extended the moratorium in Mpumalanga due to the complex nature of environmental challenges in that province. This culminated in over 41 Rights that are located in Wakkerstroom and Chrissiesmeer being identified as those belonging to the category of environmentally sensitive areas. Consequently we have taken action to prohibit mining within these areas.? A copy of the budget speech is ?Annexure 5? to the internal appeal. Accordingly, the environmental sensitivity of the Wakkerstroom area has been publicly recognised by a Cabinet Member responsible for minerals and representations have been made that, notwithstanding that rights have already been granted, action has been taken to prohibit mining in that area. That having been said, the DMR has not determined the application in term of section 49 of the MPRDA. 3 23 MINING RIGHTS APPLICATION AND APPLICATION FOR ENVIRONMENTAL AUTHORISATION IN TERMS OF NEMA 61. 62. 63. The factual information below is drawn from AMENDED Environmental and Social Impact Assessment Report and Environmental and Social Management Programme (?the Amended Final Report?). The entire report is extremely voluminous. A copy will be made available to the court to the extent necessary. AAV acquired coal prospecting rights to an area of 8,360 hectares comprising 12 farms in Mpumalanga. After exploration activities, a target area of approximately 2 500 hectares within the prospecting rights boundary was identified for mining extending over four of the twelve farms, namely Yzermyn 96 HT Portion 1, Kromhoek 93 HT, Goedgevonden 95 HT and a portion of Zoetvontein 94 HT. AAV appointed WSP Environmental (Pty) (WSP) to undertake the scoping and environmental impact assessment phases in terms of the MPRDA and NEMA forthe proposed mining project. 64. 65. 24 After the scoping phase, an environmental and social impact assessment process was followed and an Environmental and Social Impact Assessment Report and Environmental and Social Management Programme compiled for purposes of the requirements of both NEMA and the MPRDA. Strong objections to the proposed mining project were raised from the outset from a number of parties. In a letter dated 29 August 2012 (?Annexure 8? to the internal appeal) (prior to the declaration of the MPE) the MPTA objected on the bases that: 65.1 the area in which AAV wants to mine is a proposed Protected Area under NEMPAA and that the final stage of the declaration was approaching; 65.2 the work of expanding the Protected Areas in Mpumalanga was part of the National Grassland Programme of 2008; 65.3 the area is classified as a sensitive area from a biodiversity conservation perspective, is identified as such in the Mpumalanga Biodiversity Corridor Plan and was endorsed by the Mpumalanga Provincial Cabinet in 2008; 65.4 the properties also form part of the area proposed for exclusion from mining in terms of section 49 of the and 65.5 the MTPA therefore objects to any mining activities within the Wakkerstroom Wet Grasslands Area. 66. 67. 25 On 27 September 2012, after receiving the Background Information Document for the proposed Yzermyn Underground Mine, WWF-SA wrote a letter of objection to the granting of proposed mining right application in respect of properties that fall within what is now the MPE. A copy of the letter is ?Annexure 11? to the internal appeal. Its objections are on substantively the same grounds as those contained in objections to the proposed mining project and motivation for declaration of the MPE. BirdLife South Africa (the Second Applicant) also opposed the mining right and in a series of correspondence concerning the draft scoping report, indicated that it did so on the basis, inter alia, in a letter dated 5 April 2013 annexed marked that ?the application falls within the Grassland Important Bird Area This has been recognised by BirdLife South Africa and BirdLife International as both a national (SA125) and global (ZA016) IBA that is critical for the conservation of lUCli/l Red Data List threatened) bird species, grassland endemic bird species and congregatory waterbirds.?BirdLife also submitted that the ?application is fatally flawed because it falls Within a Threatened Ecosystem listed under 552(1)(a) of the National Environmental Management: Biodiversity The Wakkerstroom/Luneburg Threatened Grassland Ecosystem is listed as Endangered, and therefore viewed as necessary to ensure protection of biodiversity, environmental stability and human well-being." 39? 68. 69. 70. 71. 26 As appears from the document prepared by WSP annexed marked the Endangered Wildlife Trust (the Fourth Applicant) also objected on the basis that the area is probably one of the best grassland/wetland areas and supplies a mass of water to surrounding areas and that it is a crime to even think of compromising this water/ grass rich area. Despite these fundamental objections, on 19 March 2013 AAV submitted a mining rights application for the mining of coal to the DMR in terms of section 22 of the MPRDA. The DMR notified AAV in a letter dated 25 April 2013 that the mining rights application had been accepted. A copy of the letter is attached marked In that letter, amongst other aspects, the DMR directed AAV in terms of section 22(4) of the MPRDA to submit six copies of a sc0ping report by 24 May 2013, to consult with interested and affected parties and submit six copies of the environmental management programme which includes the environmental impact assessment report in terms of section 39 of the MPRDA by 24 October 2013 and which programme must be compiled with the input of the public and must include a record as to the extent that the public participation informed the baseline environment and the potential impact assessment. The final report was submitted to the DMR on 18 October 2013 and to the DEA on 9 January 2014 (?the Final Reporf?). it 72. 73. 74. 27 As appears from the attached letter dated 4 February 2014 marked the DMR rejected the Final Report for fundamental, substantive reasons, the most important being as follows: ?This office does not support this application in its current form considering the preferred layout for the proposed infrastructure, in that the preferred layout is located within the sensitive environment. It is the view of this office that, the proposed project will result in unacceptable pollution, ecological degradation or damage to the environment. even though there are proposed mitigation measures? (our emphasis). The DMR therefore recommended that AAV reassess the surface layout design in order to re-position the proposed infrastructure to an environment which is not sensitive and that upon the revision of the surface layout plan an EIA of the alternative location of the layout plan should be done. Amongst other aspects, the DMR also drew attention to comments from the DWA which were attached, and directed AAV to address the comments and communicate the response to the Durban office. In that letter, pursuant to a consultation in terms of section 40 of the MPRDA, the DWA gave the a detailed motivation for why it did not support the proposed mining development. In terms of the former section 40 of the MPRDA, which still applies to the grant of mining right, the Minerals Minister is obliged to 75. 76. 28 consult with any State department which administers any law relating to matters affecting the environment when considering an environmental management programme submitted to the DMR for approval in terms of the MPRDA. On 10 January 2014, after having been consulted by the DMR, the DWA addressed a letter to the Mpumalanga Regional Manager of the DMR. The DWA expressly stated in its letter that it did not support the proposed mining development. The concerns about the draft environmental management programme for the proposed Yzermyn Underground Coal Mine included the following: 76.1 the location of the proposed mine in known sensitive habitats and environments as well as adjacent to the KwaMandlangampisi Protected Environment, ?[t[he notes the site location with great concern?; 76.2 the impact of the mine on critical biodiversity sites is alarming even after mitigation is considered; 76.3 the projected impact of the dewatering of wetlands and pans through the abstraction of water from the identified boreholes is concerning; 76.4 the positioning of the adit (a horizontal passage from the surface of a mine) and the discard dump in wetlands constitutes ?a risk and a fatal flaw,? 3'1 76.5 76.6 76.7 76.8 76.9 76.10 29 no detailed wetland assessment was undertaken in the greater area to be impacted upon by the underground mining and associated cone of depression from the dewatering activities or groundwater contamination plume,? meaning that the precise impacts on wetlands in the mining area and those in the areas abutting the mining area have not been predicted (this is particularly relevant because of the ?conditions? imposed by the DMR when granting the mining right); the proposed mine will lead to a decline in water quality in the area, and is potentially prone to acid mine drainage decant after the closure of the mine; at least 42% of the proposed mining area can be classified as ?wet and;? mining threatens the existing tourism sector in the area as well as potential growth in ecotourism in the region; although the mine will create job opportunities, the majority of these job opportunities will be reserved for skilled workers from outside of the surrounding areas; the greatest fatal flaw of this site is situated within the National Freshwater Ecosystem Priority and that it is predicted that mining will lead to the dewatering of subsurface water resources and the pollution of both surface and subsurface water resources that will ?extend to wetland [Freshwater Ecosystem Priority Areas] in the near vicinity;? and 38 77. 78. 79. 80. 30 76.11 number of threatened, endangered and vulnerable flora and fauna had proved to be solely dependent on the existence of the wetlands that seem to be threatened by the proposed mining activity? and that even the [s]lightest [of] changes in water quality and quantity are detrimental to the health of the aquatic biota.? The DMR directed AAV, in terms of section 29 and 39(5) of the MPRDA, to address the aspects raised in the letter in the form of a revised EMP on or before 4 March 2014. AAV appointed EcoPartners to address these aspects. According to EcoPartners, an ?updated report? was submitted to the DMR on 4 March 2014 which ?described and assessed the new surface layout proposed by Atha? (page 32 of the Amended Final Report). On 16 May 2014, and like the DMR, the DEA also rejected the Final Report. The letter is ?Annexure 6? to the internal appeal. Copies were also sent to AAV, the Mpumalanga Department of Economic Development, Environment and Tourism and the DMR. For the purpose of this application, the most important reasons for the rejection of the Final Report are as follows:- 80.1 ?The concludes that the preferred surface layout design not be considered for development, given the sensitivities 3?1 80.2 31 pertaining to the site. It further recommends that an alternative layout design be considered and that this layout be reassessed to determine whether both environmental and socio-economic aspects can be accommodated. The Department agrees with this recommendation. Please confirm whether an alternative layout can be proposed, which will allow the proposed mine to coexist within this sensitive area, given the Department?s concerns with regard to biodiversity. . biodiversity concerns: 80.2.1 80.2.2 80.2.3 the did not consider the status of the ecosystem in terms of the Listed Ecosystems under the National Environmental Management: Biodiversity Act, No. 10 of 2004 the site is largely classified as irreplaceable in the Mpumalanga Biodiversity Conservation Plan. ?Please be advised that unless ground-truthing has been undertaken to prove that the development does not impact on the reason for the classification, this may constitute a fatal flaw. the area has a high occurrence of wetlands of very high ecological importance. This could be an indication that groundwater is very close to the surface and that any impact on the surface may be transferred to the groundwater, and vice versa; my and 32 80.2.4 in the National Freshwater Ecosystems Priority Areas maps, this area is classified as an NFEPA Priority Area, which means that it is critical for the sustained supply of potable water for communities (The NFEPA system is described in the internal appeal). Dewatering of this area at the rates proposed in the study will lead to a lowering of the water table, which is likely to have a very high negative impact on biodiversity, food production and water provisioning to areas (The Wakkerstroom area was classified as a National Freshwater Ecosystem Priority Area (NFEPA) by the South African National Biodiversity Institute (SANBI) as part of the National Freshwater Ecosystem Project, funded by the Water Research Commission, the Council for Scientific and Industrial Research SANBI, the DWA and DEA. The NFEPA Atlas1 shows that the Wakkerstroom area is a priority wetland and river ecosystem. River Freshwater Ecosystem Priority Areas are river ecosystems that are still in relatively good ecological condition occurring in healthy catchments and should remain in relatively good condition to contribute to 1 Nel, et al Atlas of Freshwater Ecosystem Priority Areas in South Africa: Maps to Support Sustainable Development of Water Resources (2011) (N FEPA Atlas) p.20. 80.2.5 33 national biodiversity goals and support sustainable use of water resources. The surrounding land and stream network need to be managed in a way that maintains the good condition of the river reach. Similarly, Freshwater Ecosystem Priority Wetlands and Wetland Clusters must be maintained if they are in good ecological condition and rehabilitated to the best attainable ecological condition if they are in a substandard ecological condition?) due to the sensitivity of the aquatic ecosystems, the hydrological importance of the area and the potential significant impact of the proposed mine on these ecosystems mainly through the dewatering of the wetlands and pans in the area, the EIAR ?cannot be considered without the identification of water areas, the water users dependent on the water, and a quantification of the dewatering effect on economic activities including increase in droughts and floods?; 80.2.6 the recommendation in the EIAR that additional ground and surface water studies be undertaken in order to adequately quantify the anticipated impacts of acid mine drainage from the proposed mine on the receiving environment is supported; 2 NFEPA Atlas p.14. 4L2 81. 80.2.7 the proposed mining area falls within an Important Bird and Biodiversity Area, declared as such by BirdLife International on account of its significance to the conservation of the world?s birds and other nature, which hosts endangered and threatened endemic and other bird species; and 80.2.8 as the mining area borders on Protected Areas to the south and the east and some of the land parcels in the application are part of a declared protected environment, a mining licence (sic) cannot be granted without the express permission of the Minister of Environmental Affairs?. According to EcoPartners, after the rejection of the Final Report new specialist studies were commissioned to address the ?concerns raised by DEA in the letter of 16 May 2014? and to assess the impact that the new surface layout design and location will have on the affected environment (page 24). REQUEST TO MEC FOR GRANT OF MINING RIGHT WITH 82. On 21 May 2014, a mere few days after the DEA rejected the Final Report, AAV addressed a letter to the MEC, Mpumalanga Provincial Government: Department of Economic Development, Environment and Tourism (MDEDET) entitled ?Request to provide AAV with guidance 83. GRANT OF THE MINING RIGHT AND THE 35 and information in respect of specific conditions to be included in AA V?s EMP to be approved by the in order to ensure protection of the environment and the biodiversity within the declared Mabola and Extended Kwamanlangampisi Protected Environments within which AAV has applied for a mining right?. A copy of the letter is annexed marked In the letter AAV requested the MEC to provide AAV with ?direction and guidance? on the most appropriate channel, in MDEDET, to follow in order to obtain clarification on any specific environmental or specific mitigation conditions or guidelines of the MDEDET which AAV could include in the final EMP to be approved by the DMR. IMPOSITION OF ENVIRONMENTAL CONDITIONS 84. 85. The DG notified AAV in a letter dated 19 September 2014 that the mining right had been granted. A copy of the letter is ?Annexure 14? to the internal appeal. In the letter, the DG notified AAV that the Regional Manager would approve the relevant Environmental Management Programme and sign the right, that in terms of section 23(5) of the MPRDA, the mining right would come into effect on the date on which the Environmental Management Programme was approved and that the signed/executed 86. 36 mining right had to be lodged for registration at the Mineral and Petroleum Titles Registration office, Pretoria, within 30 days from the date of approval of the relevant environmental management programme. The DG imposed a number of conditions pertaining to the environment, as reflected in paragraph 6 of the letter as follows:- ?the granting shall exclude any areas that constitute wetlands?; (ii) ?surface mining or related activity, as well as erection/installation of surface infrastructure shall be prohibited from taking place in any area that constitute wetlands or is deemed to be a sensitive environment?; ?the applicant shall formulate proper mitigation measures relative to the area in consultation with other stakeholders/authorities that administer matters affecting the environment at National and Provincial (ll/lpumalanga) level?; and (iv) ?a proper plan/map shall be submitted with a clear depiction of such exclusions as indicated on 1) above?. The abovementioned conditions shall be fulfilled to the satisfaction of the Department before the right can be considered further for notarial execution.? AMENDMENT OF FINAL REPORT QS 87. 88. 37 On 16 September 2014 EcoPartners gave stakeholders notification of developments relating to the project, including that the DEA ?reviewed the Final report that was submitted in January 2014 and requested that additional information be addressed?, that a new surface layout has been proposed and additional specialist studies were conducted and that the draft AMENDED Final Report was available for comment. Stakeholders were invited to provide comments by 27 October 2014. A copy of the notice is attached marked The MTPA also submitted objections to the draft Amended Final Report. Its letter dated 27 October 2014 is ?Annexure 9? to the internal appeal. In this letter, the MTPA objected on the bases that: 88.1 the amended site layout plan, accompanied by additional specialist studies pertaining to the status of the impacted ecosystem and the impact of the mine on wetlands and stream flow, is inadequate, vague and therefore fundamentally flawed; 88.2 it is unlawful to mine in a protected environment without the written consent of the Minister of Environmental Affairs and Minister of Mineral Resources; 88.3 it is undesirable for coal mining to be conducted in the 88.4 the amended EIAR the draft Amended Final Report) does not make adequate provision for the mitigation of future permanent modification and degradation of groundwater dependent ecosystems such as wetlands and springs in the proposed mining area; 88.5 88.6 88.7 88.8 88.9 .8 #7 it is not clear from the what effect subsidence will have on the topography, roads and underground water flows after mining; the does not make provision for a sound rehabilitation plan for the forecasted post-mining acid mine drainage decant; the alternative site layout plan for the discard dumpsite is inappropriate as it is situated in close proximity to a network of wetlands, seepage wetlands and partly within the ?1km restricted zone? of a tributary of the Assegaai River, which river is classified as a Critical Biodiversity River in terms of the Mining and Biodiversity Guideline, 2013. (The development of the Mining and Biodiversity Guideline: Mainstreaming Biodiversity Into The Mining Sector was initiated by the Chamber of Mines and the South African Mining and Biodiversity Forum (SAMBF), in partnership with DEA and the DMR, and with technical input and coordination by the SANBI Grasslands Programme); coal is an abundant resource in South Africa and can be mined in less ecologically sensitive areas; and the impact of the mine, if not adequately mitigated, could have a devastating impact on affected vulnerable and endangered ecosystems. 89. 90. 39 On 27 October 2014, WWF-SA also objected to the draft Amended Final Report. A copy of the letter is ?Annexure 12? to the internal appeal. There are two significant aspects of the letter. The first is the reference to a specialist report submitted by own consultant. According to a report submitted by Natural Scientific Solutions CC to WSP for submission as part of the environmental impact assessment report to the DEA (which was rejected by the DEA) (NSS Report), states the following in the executive summary: ?Although the proposed surface infrastructure layout plan will comprise a small portion of the target mining area, the combined Baseline and Impact Assessments (sic) indicate that the Yzermyn Coal Project] (sic) is fatally flawed, and should be NO GO in terms of Biodiversity. [our emphasis] This is largely because the impact of the proposed underground mining on the supply of water to the surface water resources (due to de-watering activities) and the potential groundwater contamination. These aspects will have significant impact on aquatic and wetland ecosystem functioning and biodiversity in a far greater area than the underground mining area. This aspect of the mining project, alone, is in strong conflict with international, national and provincial legislation, policies and guidelines. A large number of Cl [Conservation Important] species lift, *3 91. 40 were detected, and most habitat in the proposed underground mining and surface infrastructure areas was assigned a Very High or High sensitivity. Most potential impacts of the mining operations had a HIGH overall significance rating, even with mitigation. Moreover, the cumulative impact of numerous mining applications in the study region are of serious The second aspect is that WWF-SA was of the view that the mitigation measures proposed by EcoPartners in the draft Amended Final Report are inadequate to address the biodiversity issues raised in the NSS Repon. REQUEST FOR AN AMENDMENT OF CERTAIN OF THE ENVIRONMENTAL CONDITIONS 92. 93. According to AAV, it received notification of the grant of the mining right on 12 November 2014. It almost immediately addressed a letter to the Regional Manager: Mpumalanga Region DMR to amend certain of the environmental conditions which the DG had imposed when granting the mining right. A copy of that letter, dated 19 November 2014, is attached marked AAV sought to amend the following conditions: 94. 95. 96. 97. 41 93.1 The granting shall exclude any areas that constitutes wetlands (condition 93.2 surface mining or related activity, as well as erection/installation of surface infrastructure shall be prohibited from taking place in any area that constitute wetlands or is deemed to be a sensitive environment (condition Essentially, motivation for the amendments was that those conditions were ?impossible to abide by?. In respect of condition AAV contended that it ?poses a significant risk to the entire Yzermyn Underground Coal Project?. It requested the DMR to consider amending that condition as follows: ?the granting shall exclude surface areas for development of surface infrastructure outside Portion 1 of Yzermyn Portion 1 of Yzermyn 96HT does not fall within the MPE. It does, however, fall within the WWGA in respect of which there is an application pending in terms of section 49 of the MPRDA for mining to be prohibited in that area. It is important to note that argument is NOT that because all the mining activities will be undertaken underground there will be no negative environmental impact on surface areas and wetlands. On the So ?a v?vN 98. 99. 42 contrary, it expressly acknowledges that there will be a disturbance to the wetlands and that mitigation will be required. AAV baldy stated that it had already agreed to amend its Mine Works Programme in that the Residue Stockpile (Disposal Facility) will be removed from the plans, ?which will result in a mining project that will have no physical disturbance of channel valley wetlands and in addition the proposed disturbance to seep wetlands will be confined to the historically disturbed wetlands.? Further, ?It is important to note that the mitigation measures proposed to enable the best functioning of the wetland will initially disturb the wetland, however, the future impact brought about by these mitigation measures will ultimately result in an improvement of the current functioning of the wetland.? argument in respect of condition 6(ii), appears to contradict its position in respect of condition In respect of the latter, the impression is created that there will be no surface activity. Yet, in respect of the former, contention is that instead of surface mining and related activities being prohibited from taking place in any area that constitutes wetlands or is deemed to be a sensitive environment, it SHOULD be allowed to take place subject to AAV obtaining an exemption from having to comply with ?certain provisions of? GNR 704 promulgated underthe National Water Act, 36 of 1998. As AAV put it, ?In essence, request is that the Department of Mineral Resources consider granting AAV permission to disturb certain Si (Fit .- ll. 43 52 wetlands in line with the GN 704 Regulations under the National Water Act. This will entail AAV obtaining the necessary exemption from the DWA as custodian of the water resources of the country, prior to the commencement of any mining activity REQUESTS TO THE DMR AND AAV FOR INFORMATION PERTAINING TO THE GRANT OF THE MINING RIGHT 100. Registered interested and affected parties to the mining right application process, which included representatives of the Second and Fourth Applicants, were notified of the granting of the mining right on 23 January 2015 at a public participation meeting relating to the proposed management plan for the MPE. 101. AAV refused to give any of the registered interested and affected parties copies of the letter. There was no reference made to AAV having applied to the DMR for an amendment to conditions imposed by the DG. 102. On 23 February 2015, the CER addressed a letter to the Mpumalanga Regional Manager of the DMR Regional Manager) (?Annexure 14? to the internal appeal) in which the CER requested a copy of any letter from his office to AAV confirming that a mining right had been granted to AAV in respect of properties in the MPE. 103. 104. 105. 106. 44 The CER also enquired whether or not AAV had requested consent to mine in the MPE from the Minerals Minister in terms of section 48(1)(b) of NEMPAA. Finally, in the event that such a request had been made by AAV, the CER enquired what public participation was undenrvay. The CER did not receive a response to this letter. On 2 March 2015, the CER addressed an email to Mr Tripathi, a director of AAV, in which it requested a copy of a letter confirming that a mining right had been granted to AAV in respect of land in the MPE. A copy of this email is ?Annexure ?15? to the internal appeal. The CER did not receive a response to this email. On 3 March 2015, the CER addressed an email to the Regional Manager reiterating its request for a copy of a letter confirming that a mining right had been granted to AAV in respect of land in the MPE. A copy of this email is ?Annexure 16? to the internal appeal. On 3 March 2015, the CER received a copy from the DMR of the letter notifying AAV of the grant of the mining right. It was sent to the CER attached to a blank email. A COpy of that email is ?Annexure 18? to the internal appeal. No mention was made in that correspondence of request for the conditions to be amended. l\L .5 SIL 107. The CER has to date not received a reply to its enquiry to the Regional Manager whether or not AAV has requested consent to mine in the MPE in accordance with section 48(1)(b) of NEMPAA. REQUESTS TO THE DEPARTMENT OF ENVIRONMENTAL AFFAIRS AND DEPARTMENT OF WATER AND SANITATION FOR INFORMATION 108. On 23 February 2015, the CER addressed a letter to the Deputy Director-General: Biodiversity and Conservation of DEA in which it made a number of enquiries to ascertain whether the Minister of Environmental Affairs had received any requests for permission to be granted under section 28(1) of NEMPAA for proposed mine and whether she had been requested to comment more generally on mining rights application, including on the environmental management programme submitted by AAV in terms of the MPRDA attached to the mining right. A copy of the letter is attached marked 109. On 26 February 2015, the CER received an email from the DEA, in which the DEA advised the CER that queries related to the Protected Areas Act and authorisations that need to be obtained from the Minister to mine in the protected should be directed to the D: Protected Areas for a response.? 110. In this email, the DEA furthermore stated that it has received an application for environmental authorisation from AAV in respect of its SS 46 proposed Yzermyn project and that it expects that such application will be finalised in approximately 100 days. A copy of this email is ?Annexure 17? to the internal appeal. 111. The email from the DEA to the OER dated 26 February 2015 was copied to various officials in the DEA. No further response has been received to the letter of 23 February 2015 from the DEA. 112. The CER also corresponded with the DWS. On 24 February 2015, the CER addressed an email to the DWS requesting a copy of a water use licence (WUL) application made by AAV to the DWS in respect to its proposed Yzermyn project, alternatively, and in the event that AAV has issued a WUL to AAV in respect of its proposed Yzermyn project, a copy of the relevant WUL. A copy of this email is attached as 113. On 11 March 2015, the DWS responded to the letter of 25 February 2015. In this letter, the DWS advised the CER that it is required to request the information related to this matter via the Deputy Chief Information Officer: Chief Director Legal Services Mr. Puseletso Loselo, in accordance with the prescribed format, stipulated in the Promotion of Access to Information Act 2, of 2000 A copy of the letter is annexed marked THE INTERNAL APPEAL AND APPLICATION FOR SUSPENSION OF THE MINING RIGHT ?5 ?Shh! 114. 115. 116. 117. 47 The Applicants dispatched their notice of appeal contemplated in section 96 of the MPRDA on 30 March 2015, together with an application for the suspension of the mining right pending the outcome of the appeal. A copy of the appeal and application was sent by speed services to the legal services department on the same day and delivered to its offices on 1 April 2015. Copies were also served on the Minister, the DG and AAV. Copies of service affidavits evidencing this are attached as and On 2 April 2015, the CER received acknowledgement of receipt of the notice of appeal and application for suspension from the DMR. A copy of this acknowledgement of receipt is attached as The grounds of appeal were that:- 117.1 all available evidence, including a report submitted as part of application for environmental authorisation indicate that the mining will result in unacceptable pollution, ecological degradation or damage to the environment, therefore in conflict with the peremptory requirement of section 23(1)(d) of the MPRDA. The N88 report by a consultant appointed by AAV recommended that the area should be declared ?no go" for 117.2 117.3 48 mining, because of the impacts of mining on biodiversity and on the supply of water to the surface water resources; that the mining right is in respect of properties that fall within the Mabola Protected Environment, but that the written permission of the Minister of Environmental Affairs and the Minister of Mineral Resources in terms of section 48(1)(b) of NEMPAA to conduct commercial mining in the Mabola Protected Environment had not been obtained, or sought (as far as the Appellants could establish); that the mining right is in respect of properties that: 117.3.1 are classified as of ?irreplaceable? biodiversity value in the Mpumalanga Biodiversity Conservation Plan?s terrestrial biodiversity assessment (terrestrial assessment) in the Mpumalanga Biodiversity Conservation Plan of 2006; 117.3.2 form part of the Wakkerstroom/Luneburg Grasslands Threatened Ecosystem, listed as an endangered ecosystem in the National List of Ecosystems that are Threatened and in Need of Protection published in terms of 117.3.3 fall within a National Freshwater Ecosystem Priority Area and a Strategic Water Source Area, determined by the SANBI as part of the National Freshwater Ecosystem Project, funded by the 117.3.4 117.3.5 117.3.6 117.3.7 117.3.8 117.3.9 49 SS Water Research Commission, the Department of Water Affairs (now the Department of Water and Sanitation) and are identified in the National Protected Areas Expansion Strategy (2008) as an area that requires urgent legal protection; that, in 2013, a comprehensive application was submitted by the MTPA, at the invitation of the Regional Manager for Mpumalanga, to the Minister of Mineral Resources in terms of section 49 of the MPRDA to declare the Wakkerstroom Wetland Area as an area in which mining is prohibited; that the then Minister of Mineral Resources advised the National Council of Provinces in May 2012 that steps have been taken to prohibit mining in Wakkerstroom; the express objection to the granting of the right by the Department of Water and Sanitation; the express objection to the granting of the right by the the rejection by the DEA of final environmental impact assessment report (EIAR) in its first application for an environmental authorisation; and 117.4 117.5 50 117.3.10 ongoing and repeated objections from civil society organisations, including members of the multi? stakeholder Grassland Programme such as WWF SA and BirdLife South Africa. The mining right was granted subject to a number of conditions pertaining to the environment, which conditions are unlawful, vague and unenforceable. Furthermore, granting the mining right contravenes several National Environmental Management Principles (NEMPs) arising from section 2 of the NEMA. It is also in conflict with NEMPAA and the Constitutional duty to promote conservation through reasonable legislative and other measures in a number of respects:- 117.5.1 completely the grant of the mining right undermines the declaration of the MPE in terms of NEMPAA. The purposes of the declaration of the MPE will not be able to be achieved if coal mining takes place in the the Ministers of 11752 the written permission of Environmental Affairs and Mineral Resources have not been obtained, or as far as the Applicants are able to establish in terms of NEMPAA forthe grant of the mining right; and 1175.3 it will result in protected area expansion targets not being met. 81 60 51 117.6 The grant of the mining right is also in conflict with stated national policy in relation to mining in Mpumalanga. The former Minister of Mineral Resources and the DMR have stated publicly (as outlined in paragraphs 56 to 59 above) that steps have been taken to prohibit mining in the highly environmentally sensitive area of Mpumalanga. 117.7 On the available information placed before the DMR, the requirement in section 23(1)(d) of the MPRDA that a mining right will only be granted if the mining will not result in unacceptable pollution, ecological degradation or damage to the environment could not possibly have been met. 117.8 In the light of all the applicable environmental legislative provisions, government policies and adopted plans in respect of the Mabola Protected Environment, mining policy with regard to this area, and the environmental factors outlined above, the grant of the mining right is unlawful, irrational and unreasonable and relevant considerations were clearly not taken into account. PAIA REQUESTS SUBSEQUENT TO LODGING OF THE INTERNAL APPEAL 118. After the lodging of the appeal, the made various requests for access to information in terms of the PAIA. 119. 52 On 16 April 2015, on behalf of the Fifth Applicant, the CER submitted a PAIA request to the DMR in which it sought copies of 119.1 119.2 119.3 119.4 119.5 119.6 119.7 119.8 119.9 119.10 application for a mining right; a record of mitigation measures as contemplated by condition of the letter notifying AAV of the grant of the mining ?ght a plan/map depicting the wetlands excluded from the grant of the mining right as contemplated by condition 6(iv) of the le?en the executed mining right; the approved environmental management programme (EMPR), orthe draft EMPR if it had not been approved; records showing the approved financial provision made in terms of section 41 of the MPRDA, alternatively in terms of section 24P of the the approved social and labour plan (SLP) alternatively, a copy of the draft SLP submitted by AAV to DMR for approval; the approved mining works programme alternatively a copy of the draft mining works programme; any correspondence between AAV and the DMR and/or Minister of Mineral Resources contemplated by section 48(1)(b) of the and all correspondence between the DMR and AAV and between the DMR and the DEA and/or the DWS regarding proposed Yzermyn Project. 61 7NIU l/ 120. 121. 122. 53 After numerous requests by the CER for DMR to take a decision on the request, the CER received a letter from the DMR on 29 May 2015 advising the CER that its PAIA request had been partially granted. Access to the following documents was refused by the DMR on the grounds in sections 36(1) and 44(1) of PAIA: the financial provision documents, the mining works programme or draft mining works programme, correspondence between AAV and the DMR and/or the Minister contemplated by section 48(1)(b) of the NEMPAA and all correspondence between the DMR and AAV and between the DMR and the DEA and/or the DES regarding proposed Yzermyn Project. The DMR has to date been unable to supply copies of any of the documents in respect of which access was granted to the CER due to an apparent office relocation in the Mpumalanga region. On 21 July 2015, the Fifth Applicant lodged an internal appeal against the refusal by the DMR to grant it access to records showing the approved financial provision made in terms of section 41 of the MPRDA, alternatively in terms of section 24P of the a copy of the approved mining works programme alternatively a copy of the draft mining works programme; and copies of any correspondence between 62 123. 124. 54 AAV and the DMR and/or Minister of Mineral Resources contemplated by section 48(1)(b) of the NEMPAA. On 16 April 2015, on behalf of the Fifth Applicant, the CER also submitted a PAIA request to the DEA. lt requested the following records: 123.1 123.2 123.3 123.4 The amended EIAR submitted by AAV to the DEA following rejection of initial as per letter dated 16 May 2014 (?Annexure 6? to the internal appeal); Any approved environmental authorisation issued to Any correspondence between AAV and the DEA and/or Minster of Environmental Affairs contemplated by section 48(1)(b) of the National Environmental Management: Protected Areas Act, 2003; and All correspondence between the DEA and AAV and between the DEA and DMR and/or the Department of Water and Sanitation regarding proposed Yzermyn project. The DEA refused the request as follows:- 124.1 Access to the amended EIAR submitted by AAV to DEA and correspondence between DEA and AAV regarding the proposed project was denied on the grounds that the record contains: ?an opinion, advice, or report prepared for the purpose of assisting to formulate a policy or take a decision in the exercise of a power or the performance of a the es 125. 126. 127. 55 disclosure could reasonably be expected to frustrate the deliberative process. . . 124.2 Access to any approved environmental authorisation and any correspondence between AAV and DEA as contemplated in NEMPAA was denied on the grounds that ?the Department has no records herein?. This response appears to indicate that at the time of the taking of the Minerals Minister?s decision, the DEA had not yet granted application for an EA, and that no written permission had been sought or given by the Minister of Environmental Affairs under NEMPAA. A PAIA request was also submitted to DWS requesting a copy of a water use licence application, alternatively the WUL if it had already been issued as well as all correspondence between the DWS and AAV and between the DWS and the DEA and/or the DMR regarding proposed Yzermyn Project. DWS granted the PAIA request but supplied incomplete records. DWS provided the CER with an incomplete copy of water use licence application, which included the first 46 pages of draft integrated water and waste management plan (IWWMP) and appendices (Farm Owner?s Agreements) and (Mitigation Measures). DWS further supplied the CER with copies of fragments of both Stakeholder Consultation Report and its Amended Environmental \1 2w? l. 128. 129. 130. 56 Impact Assessment Report notification. The former report was submitted to DEA as part of original and both of these reports were submitted to DEA as part of amended EIAR. The fragments include sections of attendance registers, sections of records of meetings between AAV and interested and affected parties as well as incomplete copies of correspondence between interested and affected parties and AAV pertaining to mining right and environmental authorisation applications. Moreover, the DWS supplied the CER with limited copies of correspondence between itself and AAV pertaining to water use licence application. The most recent correspondence reveals that at 22 June 2015, water use licence application remained incomplete for outstanding information, notwithstanding a prior request by AAV for an extension. The DWS granted a final extension to AAV to submit the outstanding information to it by 28 August 2015. While no aspect of the request was refused, the records supplied by DWS exclude any correspondence between DWS and, for example, DMR, formingpart of the multi-stakeholder process during the scoping phase or following submission of application for a mining right on 19 March 2013. CORRESPONDENCE TO THE MINERALS MINISTER as 131. 132. 57 On 2 April 2015 the CER sent a letter to the Minerals Minister on behalf of the appellants in the internal appeal. A copy of the letter is annexed marked The important aspects of the letter are the following:- 132.1 132.2 132.3 132.4 The appellants expressly alerted the Minerals Minister to the fact that an internal appeal had been lodged against the grant of the mining right to AAV to conduct underground coal mining in the MPE, declared as such under section 28 of NEMPAA, and that the appellants seek the setting aside of the grant of the mining right in its entirety, including a number of vague and unlawful conditions pertaining to the environment which were imposed when the mining right was granted. The Minerals Minister?s attention was drawn to the fact that one of the primary motivations for the declaration of the MPE was to protect this truly unique and irreplaceable area from coal mining. Furthermore, the Minerals Minister was notified that, given the extreme environmental sensitivity of the area, the appellants had simultaneously with the internal appeal lodged an application for the suspension of the mining right pending the outcome of the appeal. The appellants pointed out that one of the grounds of appeal is that the mining right was granted notwithstanding that, as far as 132.5 132.6 58 the appellants have been able to establish, the written permission of the Minister of Environmental Affairs and the Minerals Minister in terms of section 48(1)(b) of NEMPAA to conduct commercial mining in the MPE had not been obtained, orsought A copy of a letter sent to the Minister of Environmental Affairs by the CER was enclosed in which that minister was requested not to take any steps to consider or evaluate any such application as may be made by AAV for the minister?s written permission to conduct commercial mining in the MPE pending the final determination of whether the grant of the mining right to AAV was lawful and the appellants made the same request to the Minerals Minister. The appellants expressly requested the Minerals Minister to consider and determine the appellants? application for suspension of the mining right pending the final determination of whether the grant of the mining right to AAV was lawful. THE MINERALS 133. The Minerals Minister sent a response to request of 19 November 2014 for an amendment of the environmental conditions 627 134. 135. 136. 59 imposed by the DG in a letter dated 14 April 2015. A copy of the letter is attached marked He advised AAV that, in terms of section 103(4)(b) of the MPRDA, he was ?hereby amending? the decision made by the DG on 19 September 2014 to grant the mining right to AAV subject to the conditions contained in the granting letter. Paragraph 2 of the letter reads as follows: ?This therefore serves to inform you that your above mentioned application for a mining right to mine Coal in respect of the abovementioned properties has been granted in terms of section 23(1) of the abovementioned Act. The Ftegional Office Will prepare the final copies of the right to be signed?. The letter then goes on to reproduce the entire contents of the ?granting letter? of 19 September 2014 save (in addition to minor changes in respect of the number of copies of the final mining works programme and Social and Labour Plan) as follows:- 136.1 All the environmental conditions in paragraph 6 of the letter have been removed; 136.2 The following has been added:? Finally, noting the provisions of section 23(6) of the Act the MPRDA), the following shall also be applicable: (1) You may not commence with mining operations prior to the obtaining of a Water License from the Department of Water Affairs; 6% 137. 138. 139. 60 (ii) You may not commence with mining operations prior to the obtaining of an environmental authorization from the Department of Environmental Affairs; and You must comply with all other related legislations before the commencement of mining". As appears from the above, the letter from the Minerals Minister is ambiguous. On the one hand, the letter reflects that the Minerals Minister is amending the decision taken by the DG. However, the letter does not contain a description of any amendments. Instead, one is left to infer what those amendments might be by comparing the ?granting? letter and the Minerals Minister's letter. On the other hand, there are indications in the letter that the Minerals Minister ?amended? the decision by in reality withdrawing it in its entirety (or simply withdrew it) and replacing it with a fresh grant of a mining right in terms of section 23(1) of the MPRDA. As already mentioned above, the letter also refers in paragraph 2 to a right being granted and substantially reproduces all the standard aspects contained in a ?granting letter: when the DG grants mining rights. A footer to the letter, on all but the first page, reflects ?Withdrawal of decision of Fiesources to amend paragraphs 6(i) and 6(ii) of the granting letter Atha-Africa Ventures (Pty) Mining The MPRDA does not make provision for an internal appeal against the decision of the Minerals Minister. The Applicants? only remedy is, 61 accordingly, to launch review proceedings in terms of PAJA in respect of the Minerals Minister?s decision. THE SUSPENSION OF THE INTERNAL APPEAL PROCESS 140. 141. 142. 143. On 12 May 2015, the Legal Services Department of the addressed a letter to enclosing ?comments? on the appeal as submitted by AAV and affording the appellants an opportunity to comment on these documents within 21 days of receipt, whereafter the DMR would proceed with the facilitation of the appeal. A copy of the letter is attached marked The DMR also advised the CER that the reasons for the decision from the Regional Manager remain outstanding and that the will be provided with a copy of these reasons as soon as the Legal Services Chief Directorate is in receipt thereof. The ?comments? from AAV consisted of a letter dated 24 April 2015 addressed to the Chief Director Legal Services: DMR, together with two annexures. A copy of the letter is attached marked The first annexure is the letter dated 19 November 2014 sent to the Regional Manager: Mpumalanga Region by AAV requesting the amendment of certain of the conditions imposed by the DG when the mining right was granted to AAV (PML7 hereto). The second annexure 70 144. 145. 146. ,2 7: is the letter dated 14 April 2015 sent to AAV by the Minerals Minister (PML15 hereto). In respect of the appeal process, AAV requested the DMR to inform the CER that what it referred to as ?the Second (FINAL) Granting Letter? was issued to AAV on 14 April 2015, and as a result ?the First Granting Letter? became ?null and void? and that ?Naturally following from the annulment of the First Granting Letter, no appeal can be entertained by the in respect of the First Granting Letter.? The CER sent a response to the DMR on behalf of the appellants in a letter dated 26 June 2015, a copy of which is attached marked The advised the DMR that in the light of the Minerals Minister?s decision the appellants' instructions were to launch review proceedings in the High Court against the decision of the Minerals Minister and that, in the circumstances, the appellants requested that the appeal be suspended pending the outcome of the review proceedings. GROUNDS OF REVIEW 147. As outlined above, the Minerals Minister?s decision is ambiguous. The first possibility is that the Minerals Minister simply amended the decision to grant the mining right to AAV by removing the -wi as environmental conditions imposed by the DG (paragraph 6 of the letter) and inserting new conditions. For the reasons outlined below, the effect of such an amendment is so material that it is manifestly clear that the DG would not have granted the mining right at all, alternatively could not possibly have lawfully granted the mining right in the terms set out in the amendment. To that extent, it was therefore not legally permissible for the Minerals Minister to effect those amendments to the grant of the mining right. Unlawfulness: mining right must be refused if the mining will result in unacceptable pollution. ecological deqradatian or damaqe to the environment. 148. The Applicants? principal ground of review is that the Minerals Minister?s decision is unlawful. In terms of section read with 23(3), of the MPRDA an application for a mining right must be refused if the mining will result in unacceptable pollution, ecological degradation or damage to the environment. The 06?s decision 149. As outlined in detail above, all the information and evidence submitted to the DMR prior to the grant of the mining right by the DG to AAV overwhelmingly established that the proposed mining activities, which lift: cover a substantial portion of the MPE, and fall within the WWGA, will 64 ?13 result in unacceptable ecological degradation or damage to the environment. 150. It is common cause between the DEA, the DWA, the MTPA and civil society organisations with established expertise, such as WWF-SA and the Applicants, that the area in respect of which the mining is to take place is unique, sensitive and has irreplaceable biodiversity and water resources of immense importance to South Africa?s future water security. 151. The clear and consistent position articulated to the DMR by relevant role-players during the course of the consideration of the mining right application was that, in this particular protected area, mining should not be permitted to take place at all. 152. The Applicants emphasise the following aspects outlined above: 152.1 On 10 January 2014, pursuant to a consultation in terms of section 40 of the MPRDA, the DWA addressed a letter to the Mpumalanga Regional Manager of the DMR in which it expressly stated that it did not support the proposed mining development (?Annexure 7? to the internal appeal). The DWA gave detailed reasons which reflect that the DWA was of the opinion that the proposed mine would result in environmental damage which is not capable of being mitigated. Furthermore, the DWA emphasised the extent of the proposed mining area 153. a. 74 which constitutes wetland, that the greatest fatal flaw of this site is that it is situated within a designated National Freshwater Ecosystem Priority Area and that it is predicted that mining will lead to the dewatering of subsurface water resources and the pollution of both surface and subsurface water resources; 152.2 On 4 February 2014, the DMR rejected the Final Report on the basis that the proposed proiect will result in unacceptable degradation or damage to the pollution, ecological environment. even though there are proposed mitigation measures?; 152.3 In the same letter, the DMR directed AAV to address the concerns outlined in its letter dated 10 January 2014; 152.4 On 16 May 2014, the DEA notified AAV that it had EIAR the Final Report). A copy of that letter was sent to the DMR. The DEA gave detailed reasons for the rejection of the EIAR reflecting that the proposed mining would cause unacceptable environmental damage and degradation. At the time that the DG granted the mining right, EcoPartners had not yet published the draft AMENDED Final Report for public comment which was specially required by both the DMR and the DEA to assess whether it was at all possible for mining to go ahead. 154. 66 Key aspects of the surface layout and assessment of impacts On the wetland had also not been finalised. This included that a ?detailed delineation? of the wetland boundaries within the proposed surface infrastructure was only undertaken by Scientific Aquatic Services on 7 November 2014 and their opinion in respect thereof provided on 9 December 2014 (Appendix H4 to the Amended Final Report). Developments after the 06?s decision 155. 156. 157. 158. As mentioned above, EcoPartners only published the draft Amended Final Report for public comment in October 2014 (Le. after the DG had already granted the mining right). The MTPA and provided detailed objections to the draft Amended Final Report in their respective letters of 27 October 2014 and 27 October 2014 (see paragraphs 88 to 91 above). The Applicants emphasise that it is evident from these objections that both the MTPA and were of the view that AAV had not adequately addressed the shortcomings in the Final Report which had been rejected by both the DMR and the DEA. Those letters refer to initial studies done by Natural Scientific Services CC on behalf of AAV and submitted to WSP which reflects in its executive summary that the proposed Yzermyn mine should be a NO 75' '7 lb 159. 160. 161. 6. '76 GO in terms of biodiversity because of the impact of the proposed underground mining on the supply of water to the surface water resources (due to the de-watering activities) and the potential groundwater contamination (see page 1 of ?Annexure 12? to the internal appeal). It appears from the letters that AAV amended its proposal, including with new mitigation measures. In respect of the wetland assessment, AAV seemingly relied on further specialist studies by Scientific Aquatic Services. According to the MTPA, those studies with regards to the new above ground infrastructure and study site are flawed in that the information provided on the biodiversity sensitivities is very vague, contradictory and incomprehensive (paragraph 2, ?Annexure 9? to the internal appeal). WWF-SA also disputed the new proposed mitigation measures on the basis that Natural Scientific Solutions CC and interested and affected parties had provided ample evidence as to why the project should not go ahead. As outlined above, on 19 November 2014, AAV requested an amendment to the conditions imposed by the DG. This request in and of itself reflects that the mining will result in unacceptable environmental degradation or damage to the environment:- 2H 68 77 161.1 AAV objected to the condition that the granting shall exclude any area that constitutes wetlands; 161.2 it concedes that there will be disruption and disturbance of wetlands; and 161.3 its bald averments in respect of mitigation measures are not supported by any of the evidence, including the high level of biodiversity which is classified as irreplaceable within the Mpumalanga Biodiversity Conservation Plan. The Minerals Minister?s decision 162. The Applicants are not aware of what information was placed before the Minister when he took the decision. 163. By that stage, the Applicants had already lodged their internal appeal to be decided by the Minister in which they outlined all the evidence referred to above that the mining right should not have been granted by the DG, including that the requirement of section 23(1)(d) had not been met. 164. The Applicants had also alerted the Minerals Minister in the letter addressed by the CER on 2 April 2015 of the extreme environmental sensitivity of the area and that his permission was also required in terms of NEMPAA for mining to take place in the MPE. 6.. 165. There is no reference in the correspondence from AAV to the DMR requesting an amendment to the conditions imposed by the DG and letter dated 24 April 2015 to the Amended Final Report. It appears as if the Amended Final Report may well not have been submitted to the DMR and hence would not have been before the Minerals Minister when he took his decision. The Applicants will deal with this aspect to the extent necessary in a supplementary founding affidavit after the rule 53 record is filed. 166. Suffice to say at this stage that the Amended Final Report includes two different options for the surface infrastructure layout: a ?most viable alternative? and a ?preferred alternative/best environmental option?. In thEmbst viable alternative ?the total wetland area being disturbed by the main sun?ace infrastructure was reduced from 24.27 ha in the old layout alternative to 14.1 hectare in the most viable layout? (page 65). 167. In the best environmental option, the main surface infrastructure was further reduced to 12.10 hectares. This entails removal of the discard dump (residue stockpile), removal of the wash plant and replacement of the infrastructure surrounding the adit (page 70). 168. If the applicants are correct (as submit they are) in contending that the decision to grant a mining right was unlawful because, despite the environmental conditions imposed by him, he could not reasonably have satisfied himself that the requirements of section 23(1)(d) of the 169. 170. 171. 172. 71 MPRDA had been satisfied, then it follows as a matter of course that the Minister?s decision to replace the decision with one which removes the environmental conditions imposed by the DG must, a fortiori, be unlawful. The conditions imposed by the Minerals Minister are self-evidently not sufficient to meet the requirement that the mining will not result in unacceptable pollution, ecological degradation or damage to the environment. If the Minerals Minister in fact withdrew the grant of the mining right by the DG and took a fresh decision to grant the mining right, the requirement that the mining will not result in unacceptable pollution, ecological degradation or damage to the environment will still not have been met. The Applicants emphasise that it appears from the Minerals Minister?s letter that at the time that he took his decision, the environmental management programme had not yet been approved by the Regional Manager. Environmental authorisation has not yet been obtained under NEMA, nor has a water use licence been issued under the NWA. In terms of section read with 23(3), of the MPRDA an application for a mining right must be refused if the mining will result in unacceptable pollution, ecological degradation or damage to the ?2 WW 71 environment. In the light of all of the above, the Minerals Minister?s decision falls to be reviewed on the basis that it is unlawful as provided in sections (a mandatory and material procedure or condition was not complied with), (the decision contravenes the law and is not authorised by the empowering provision) and 6(2(i) (the action is othenNise unlawful) of PAJA. Minerals Minister?s decision materially influenced by an error of law and failure to have regard to relevant considerations 173. 174. 175. The Minerals Minister?s decision was materially influenced by an error of law in that he failed to appreciate that when amending or substituting the decision (as the case may be as outlined above), he was obliged to satisfy himself that the amended or substituted decision met the requirements of section 23(1)(d) of the MPRDA. in consequence, the Minerals Minister also failed to have regard to relevant information placed before the DG which related to the environmental consequences of granting a mining right at all, or granting a mining right without the conditions imposed by the Minister. The Minerals Minister?s decision therefore also fails to be reviewed on the grounds in sections and of PAJA. ?30 72 Failure to have regard to NEMPAA was irrational and unreasonable and resulted in a failure to take into account relevant considerations 176. 177. 178. 179. As outlined above, the MPE was declared in January 2014 and, in terms of section 48(1)(b) of NEMPAA, no person may conduct commercial mining in a declared protected environment without the written permission of both the Minister of Environmental Affairs and the Minerals Minister. NEMPAA does not specify when such written permission should be sought or obtained. It is not clear whether AAV has sought such permission from either or both Ministers. In the Amended Final Report AAV is reflected as ?currently? being in the process of obtaining permission from both Ministers for a ?section 48(3) authorization? which is described as the ministers being empowered to prescribe conditions under which those activities may continue in order to reduce or eliminate the impact of those activities on the environment. On the other hand, the Amended Final Report also states that AAV submitted a motivation for the withdrawal of the declaration of part of the MPE under section 29 of NEMPAA. In their responses to PAIA requests for any correspondence between AAV and the respective ministers pertaining to section 48(1)(b) of the 9 Wu 73 $1 NEMPAA, the DMR and the DEA stated that they have no such records. 180. Given all the information before the DG pertaining to the requirement of written permission under NEMPAA, the contents of the internal appeal which addressed this aspect fully, and the 2 April 2015 letter to the Minerals Minister expressly further alerting the Minister to the requirement that his written permission is required for a person to conduct commercial mining in an MPE, the complete absence of any reference to NEMPAA in the Minerals Minister?s notification to AAV of his decision is striking. 181. That is particularly so because the Minerals Minister expressly provided that, noting the provisions of 23(6) of the MPRDA, AAV may not commence with mining operations prior to the obtaining of a water use licence from the DWS and an environmental authorisation from the DEA. 182. On the face of it, the Minerals Minister?s seeming complete lack of regard to the fact that his permission is required for commercial mining to take place in the MPE is irrational, unreasonable and is also a failure to take into account relevant considerations. 183. 184. 185. 7. ?33 For all the reasons given above, the requirement in section 23(1)(d) of the MPRDA that the mining will not result in unacceptable pollution, ecological degradation or damage to the environment was not met. Accordingly, in the circumstances of this particular mining right application, it would have been rational and reasonable for the Minerals Minister to make a decision under NEMPAA at the same time as he amended the grant of the mining right (alternatively granted the mining right afresh) - The MPE was declared for a number of purposes, including to 184.1 protect this unique, sensitive area with irreplaceable biodiversity. 184.2 All the evidence shows that coal mining in the MPE and WWGA would cause irreparable environmental damage and degradation which cannot be mitigated. 184.3 If coal mining were to be permitted in the MPE, this would defeat the purpose of the declaration in its entirety. in the circumstances, the Minerals Minister?s decision also falls to be reviewed on the basis of a number of grounds in section 6 of PAJA including that it is irrational (section unreasonable (section and relevant considerations were not taken into account (section I 2 WV .. 11 Minerals Minister?s decision was irrational and unreasonable and resulted in a further failure to take into account relevant considerations 186. Given all the aspects referred to above including: - 186.1 the common cause extreme environmental sensitivity of the MPE and the 186.2 that the extent of the prOposed mining activity will cover a significant portion of the MPE and will fall in the 186.3 that all the evidence shows that the proposed coal mine will cause degradation and damage that cannot be remediated; 186.4 the rejection of the Final Report by the DEA and the DMR, the objection to the mine, the objections and objections from non-state bodies to the grant of the mining right; the Minerals Minister?s decision also falls to be reviewed on the grounds that it is irrational (section of PAJA), and unreasonable (section of PAJA) and failed to take into account relevant considerations (section of PAJA. REUEFSOUGHT 187. The primary relief which the Applicants seek is the setting aside of the Minerals Minister?s decision and, to the extent that it survived the Minerals Minister?s decision, the decision to grant the mining right to AAV. 188. 189. 76 $5 The Applicants also seek ancillary relief to ensure that the defects in the Minerals Minister?s decision and the decision are cured if mining rights application is remitted to the DG to take a fresh decision. Broadly, the Applicants seek the following:- 189.1 an order directing the DG not to decide mining rights application unless and until environmental management programme has been approved in terms of the now repealed section 39(4)(a) of the 189.2 an order directing the DG not to decide mining rights application unless and until an environmental authorisation has been issued to AAV in terms of NEMA. In terms of the amendments introduyced by the MPRDA Amendment Act, 49 of 2008, section 23(1)(d) has been amended to provide that the Minister must grant a mining right if the mining will not result in unacceptable pollution, ecological degradation or damage to the environment and an environmental authorisation is issued (our emphasis). Whilst the amendment does not apply to mining rights application which was submitted to the DMR before the amendment came into effect, it is submitted that it is appropriate in this instance for the DG not to grant a mining right to AAV unless and until an environmental authorisation is 189.3 189.4 77 issued. As outlined above, AAV already submitted the AMENDED Final Report to the DEA early this year and on 26 February 2015 the DEA advised the CER that the application would be decided within 100 days; various orders to ensure that consultation takes place with state departments and organs of state which administer laws relating to matters affecting the environment, namely the DEA (if the relief described in 189.1 is not granted), the DWS and the MTPA and that the DG or his delegate have due regard to, and take into account the views, comments, opinions and positions of those organs of state before the decision is taken whether to grant the mining right. To the extent that the DMR may have consulted with the DWA and the DEA before the DG first granted the mining right, there is a need for further consultation in the light of the AMENDED Final Report, including but not limited to, the seemingly contradictory expert reports of N88 and Scientific Aquatic Services in respect of biodiversity and the wetlands; an order directing the DG (or his delegate), when deciding whether to grant application for a mining right, to have due regard to, and consider, the status of certain of the properties which are the subject of the mining rights application as:- 189.4.1 a protected environment under ?36 27 78 189.42 a national freshwater ecosystem priority area under the Atlas of Freshwater Ecosystem Priority Areas endorsed by the Department of Environmental Affairs and the Department of Water and Sanitation; 189.43 a critical terrestrial and aquatic biodiversity area under the Mpumalanga Biodiversity Conservation Plan endorsed by the MEC for Agriculture, Rural Development, Environmental Affairs and Tourism for Mpumalanga Province; and 189.4.4 of an endangered ecosystem under the List Ecosystems that are Threatened and in Need of published the Minister of Protection by Environmental Affairs under the National Environmental Management: Biodiversity Act No. 10 of 2004; 189.5 an order directing the DG (or his delegate), when deciding whether to grant application for a mining right to have due regard to, and consider, the cumulative impacts of existing mining, and mining as proposed by AAV, on the Enkangala Drakensberg Strategic Water Source Area, including the catchment areas of the Pongola, Tugela and Vaal River Systems; 79 190. In respect of the relief dealing with Strategic Water Source Areas, we emphasise the following: - 190.1 ?Water source areas (WSAs) provide a disproportionate amount of run-off to the rest of the catchment. South Africa?s water source areas are generally found in the highest parts of the landscape that receive the most rainfall. users and ecosystems are dependent on the healthy functioning of these areas to sustain good quality water supplies. South Africa?s WSAs can be grouped into 21 areas. The dominant land cover is natural vegetation cover often because slope and altitude have prevented more intense development. Fifteen per cent of the area is cultivated and 13% is under plantation. Three per cent is degraded land, mainly in the Eastern Cape. Less than 1% of water source areas are currently mined; however, 70% of the areas in Mpumalanga are under either a prospecting or mining license and this is cause for particular concern. The overlap of coal deposits and water source areas is also less than 1% of all WSAs, but it is significant in the Enkangala Drakensberg and the Mfolozi headwaters. Only 16% of the WSAs are formally protected as nature reserves or parks. The highest protection is found in the Western Cape with the Kougaberg, Swartberg and Grootwinterhoek areas having more than 70% formal protection. Water source areas in the Eastern Cape and Maloti Drakensberg, the Enkangala Drakensberg, the Mfolozi so ?3?1 headwaters and the Soutpansberg have very low or no protection. South Africa?s WSAs can be further divided into those of local importance and those of national importance. Five WSAs are of local importance, but have limited dependents and impact. These are mainly on the coast in the Western Cape and KZN. The 16 nationally important WSAs form the headwaters of major river systems which supply significant areas and/or the economy, including inter-basin transfers. These are South Africa?s strategic WSAs. Disrupting water supply from these 16 strategic WSAs would effectively turn off the taps to our economy and seriously impact our food and water security.?3 190.2 ?Strategic water source areas can be regarded as natural ?water factories?, supporting growth and development needs that are often a far distance away. Deterioration of water quality and quantity in these areas can have a disproportionately large negative effect on the functioning of ecosystems and the overall sustainability of growth and development in the regions they support (Viviroli et al. 2007). Appropriate management of these areas, which often occupy only a small 3 An Introduction to South Africa?s Water Source Areas, 2013, pp14 sa watersouroe areatU iopdf} fraction of the 81 land surface area, can greatly support sustainability of water quality and quantity.?4 COSTS 4 South Africa?s Strategic Water Source Areas, March 2013) FlixI ALth) 191. 82 Sections 32(2) and (3) of NEMA address the issue of costs awards within the context of environmental litigation, and provides that a court may decide not to award costs against unsuccessful litigants who are acting in the public interest or to protect the environment and who had made due efforts to use other means for obtaining the relief. These provisions state that: (2) A court may decide not to award costs against a person, or group of persons which fails to secure the relief in respect of any breach or threatened breach of any provision including a principle of this Act or any other statutory provision concerned with the protection of the environment or the use of natural resources if the court is of the opinion that the person or group of persons acted reasonably out of a concern for the public interest or in the interest of protecting the environment and had made due efforts to use other means reasonably available for obtaining the relief sought. (3) Where a person or group of persons secures the relief sought in respect of any breach or threatened breach of any provision of this Act or any other statutory provision concerned with the protection of the environment, a court may on application? award costs on an appropriate scale to any person or persons entitled to practise as advocate or attorney in the Ftepublic who 192. as ?11 provided free legal assistance or representation to such person or group in the preparation for or conduct of the proceedings; and order that the party against whom the relief is granted pay to the person or group concerned any reasonable costs incurred by such person or group in the investigation of the matter and its preparation for the proceedings.? In bringing these proceedings, the Applicants are acting in the public interest and to protect the environment by promoting environmental decision-making that complies with the MPRDA and promotes the objects of and principles set out in NEMA. The Applicants have made due efforts to use other means for obtaining the relief, including exhausting internal remedies through the internal appeal under the MPRDA. Accordingly, even if the Applicants are unsuccessful, costs should not be awarded against them. CONCLUSION 193. I respectfully submit that a proper case is made out for the relief sought and I accordingly pray for an order in terms of the notice of motion to which this affidavit is attached. Ewen a4 ?13 . i PHILLIPINE AKOMA LEKALAKALA I certify that: 1. the deponent acknowledged to me that s/he knows and understands the contents of this declaration; s/he has no objection to taking the prescribed oath; s/he considers the prescribed oath to be binding on her/his conscience; the deponent thereafter uttered the words swear that the contents of this declaration are true, so help me God?; the deponent signed this declaration in my presence at the address set out hereunder on 1 SEPTEMBER 2015. IL - - Commissioner of oaths WAYN BE Ex Ohicio Commissioner of Oaths Practising Attorne Lawyers for Human Rights 4111 Floor; Heerengracht Building 87 De Korie Street, Braamfontein Johannesburg, 2001 Tel: 011 339 1960 Fax: 011 339 2665 NOTICE OF APPEAL iN TERMS OF SECTION 86(1) OF THE MENERAL AME PETROLEUM RESOURCES DEVELOPMENT ACT, 2002 AFRICA BARDUFE SOUTH AFRICA AND ENVIRONMENTAL JUSTECE NETWORK OF SOUTH AFRICA ENDANGERED FEDERATION FOR A ENVIRONMENT FOR WATER AND RURAL DEVELOPMENT BENCH MARKS FOUNDATION IN RE: DEPARTMENT REOURCES ATHA-AFRICA VENTURES LTD FERST APPELLANT SECONQ APPELLANT APPELLANT FOURTH APPELLANT APPELLANT APPELLANT SEVENTH AFPELLANT EIGHT APPELLANT BECISON HGLDER NGTECE OF APPEAL THE GRANT OF MINING WIGHT TO (PTY) LTD EN RESPEQT OF EN THE OF WAKKERSTROOM ANS REQUEST FQR THE SUSPENSEGN 0F THE GRANT OF REGHT FENWNG THE OUTCOME. QF THE APPEAL INTRODUCTION On 22 January 2014 the Member of the Executive Council for the Department of Economic Development and Tourism, Mpumalanga, gave notice in terms of section and of the National Environmental Management: Protected Areas Act, 2003 of the declaration of a number of protected environments, including the Mabola Protected Environment near Wakkerstroom in Mpumalanga (?the Mabola Protected Environment?). One of the express motivations for the declaration of the Mabola Protected Environment was to protect this unique, irreplaceable and threatened grassland area from coal mining. On 19 September 2014 the Director-General of the Department of Mineral Resources granted a mining right to Atha-Africa Ventures (Pty) in terms of section 23(1) of the Mineral and Petroleum Resources Development Act, 2002 for the proposed Yzermyn underground coal mine over the properties Goedgevonden 95HT, Kromhoek 93HT, Yzermyn 96HT and Zoetfontein 94 HT (?the mining right?). The properties fall within the Mabola Protected Environment and all but two of them fall within the Wakkerstroom Wetlands Area. The mining right was granted notwithstanding:- 4.1. that all available evidence, including a report submitted as part of application for environmental authorisation indicate that the mining will result in unacceptable pollution, ecological degradation or damage to the environment, contrary to the peremptory requirement of section 23(1)(d) of the MPRDA. The report by a consultant appointed by AAV recommended 4.2. 4.3. ?76 that the area should be declared ?no go? for mining, because of the impacts of mining on biodiversity and on the supply of water to the surface water resources; that the mining right is in respect of properties that fall within the Mabola Protected Environment, but that the written permission of the Minister of Environmental Affairs and the Minister of Mineral Resources in terms of section 48(1)(b) of NEMPAA to conduct commercial mining in the Mabola Protected Environment had not been obtained, or sought (as far as the Appellants can establish); that the mining right is in respect of properties that: 4.3.1. are classified as of ?irreplaceable? biodiversity value in the terrestrial biodiversity assessment contained in the Mpumalanga Biodiversity Conservation Plan of 2006; 1 4.3.2. form part of the Wakkerstroom/Luneburg Grasslands Threatened Ecosystem, listed as an endangered ecosystem in the National List of Ecosystems that are Threatened and in Need of Protection published in terms of the National Environmental Management: Biodiversity Act, No. 10 of 2004 4.3.3. fall within a National Freshwater Ecosystem Priority Area and a Strategic Water Source Area, determined by the South African National Biodiversity Institute as part of the National 1 Available at nan! (last viewed on 22 February 2015) . 3 4.4. 4.5. 4.6. 4.7. 4.8. Freshwater Ecosystem Project, funded by the Water Research Commission, the Council for Scientific and Industrial Research SANBI, the Department of Water Affairs (now the Department of Water and Sanitation) and 4.3.4. are identified in the National Protected Areas Expansion Strategy (2008) as an area that requires urgent legal protection; that, in August 2011 a comprehensive application was submitted by the Mpumalanga Tourism and Parks Agency to the DMR in terms of section 49 of the MPRDA to declare the Wakkerstroom Wet Grasslands area (?the WG area") as an area in which mining is prohibited (?the section 49 application?); that the Regional Of?cer of the DMR visited the WG area and acknowledged that the section 49 application has merit due to the hydrological and environmental sensitivity of the area; that the Minister of Mineral Resources advised the National Council of Provinces in May 2012 that steps have been taken to prohibit mining in Wakkerstroom; the express objection to the granting of the right by the Department of Water and Sanitation; the express objection to the granting of the right by the ?f?l 4.9. the rejection by the Department of Environmental Affairs of final environmental impact assessment report (EIAR) in its first application for an environmental authorisation (AAV has since submitted a second application for an environmental authorisation to and 4.10. ongoing and repeated objections from civil society organisations, including members of the multi-stakeholder Grassland Programme such as VVWF South Africa and BirdLife South Africa. 5. The mining right was granted subject to a number of conditions pertaining to the environment, which conditions are unlawful, vague and unenforceable. 6. Accordingly, the parties hereby appeal against the grant of the mining right in terms of section 96 of the MPRDA, read with Regulation 74 of the Regulations to the MPRDA. 7. The mining right should be set aside in its entirety and, given the extreme environmental sensitivity of the area, the mining right must be suspended pending the outcome of the appeal. THE PARTIES 8. There are eight appellants. 9. EARTHLIFE AFRICA JOHANNESBURG is a non?profit organisation with NPO number 004-159. EarthLife challenges environmental degradation and aims to promote a culture of environmental awareness and sustainable development. It also 10. 11. 12. seeks to improve the quality of life of vulnerable people in South Africa through assisting civil society to have greater impact on environmental governance by understanding and defending their constitutional rights, specifically those enshrined the Constitution. Its address is 5th Floor in section 24 of Hereengracht Building, 87 De Korte Street, Braamfontein, Johannesburg BIRDLIFE SOUTH AFRICA is a non-profit and public benefit organisation registered in terms of the laws of the Republic of South Africa with NPO registration number 001-298 NPO and P80 exemption number 930 004 518, with its head office at 239 Barkston Drive, Blairgowrie, Johannesburg. It is an independent nature conservation organisation with the mission to promote the enjoyment, conservation, study and understanding of wild birds and their habitats. BirdLife South Africa has over 6000 members in 32 bird clubs throughout South Africa. BirdLife South Africa is a partner in the Grasslands Programme, which is a partnership between government, non- governmental organisations and the private sector to mainstream biodiversity into the Grasslands Biome, with the intention to balance biodiversity conservation and development of protected areas in a production landscape. The MINING AND ENVIRONMENTAL JUSTICE COMMUNITY NETWORK OF SOUTH AFRICA (MEJCON-SA) a non-profit voluntary organisation with its administrative address at 0/0 Centre for Environmental Rights, 2"d Floor, Springfield Studios, 1 Scott Street, Observatory, Cape Town. MEJCON-SA was constituted in October 2012 with the main objective of promoting and defending the environmental and human rights of communities that are both directly and indirectly affected by mining; and to ensure the sustainable use of mineral resources. The ENDANGERED WILDLIFE TRUST (EWT) is a non-government non-profit organisation and a public benefit organisation with NPO Number 015-502 and PBO 6 ?11 v1 13. 14. 15. (00 number 930 001777, EWT has its physical address at Building K2, Ardeer Road, Pinelands Office Park, Modderfontein, Gauteng. EWT is a fully accredited member of the Union of Conservation of Nature and is dedicated to conserving threatened species and ecosystems in southern Africa. FEDERATION FOR A SUSTAINABLE ENVIRONMENT (FSE) is a registered non- profit company with registration number 2007/033134/08 and NPO number 062986- NPO. FSE has its physical address at 8 Palladio, corner of Street and Roux Avenue, Beverley Gardens, Johannesburg. The main objective is promoting the ecological sustainability of development and the wise use of natural resources in South Africa. GROUNDWORK is a non-profit environmental justice service and developmental organisation with NPO number 045-235-NPO. groundWork has its physical address at 6 Raven Street, Pietermaritzburg. groundWork seeks to improve the quality of life of vulnerable people in South Africa, and increasingly in Southern Africa, through assisting civil society to have a greater impact on environmental governance. groundWork places particular emphasis on assisting vulnerable and previously disadvantaged people who are most affected by environmental injustices. The ASSOCIATION FOR WATER AND RURAL DEVELOPMENT (AWARD) is a non-profit organisation with company registration Number 98/03011/08 and non-profit organisation registration Number 006 821. Its physical address: Number 14 Safari Junction, Hoedspruit, Limpopo. AWARD specialises in participatory, research-based project implementation aimed at addressing issues of sustainability, inequity, and poverty through building natural-resource management competence and sustainable water?based livelihoods. vision is to contribute to a more sustainable world and in particular to a democratic South Africa where the principles of equity and 7 16. 17. 18. 19. sustainability are upheld and strengthened through building active civil society participation in wise water and biodiversity stewardship, management and governance. The BENCH MARKS FOUNDATION is a non-profit, faith-based organisation owned by the churches in South Africa, with its physical address at 6th Floor, Khotso House, 62 Marshall Street, Marshalltown, Johannesburg, South Africa, 2017. The Bench Marks Foundation is committed to providing leadership and advocacy on issues regarding benchmarking of good corporate governance, ethical and socially responsible investment as well as linking people and institutions committed to these ideals. The vision of the Bench Marks Foundation is to promote corporate social responsibility and socially responsible investment. The Appellants are represented by the Centre for Environmental Rights CER is a law clinic accredited by the Law Society of the Cape of Good Hope, and operates from premises at Springtime Studios, 1 Scott Road, Observatory, Cape Town. The DMR is the government department responsible for, inter-alia, processing mining right applications by mining companies. The Minister of Mineral Resources is authorised to grant or refuse mining right applications in terms of section 23(1) of the MPRDA. The Director-General ofthe DMR is the authorised delegates of the Minister of Mineral Resources as described in the delegation of powers dated 12 May 2004 in terms of section 103(1) and (2) of the MPRDA. VENTURES (PTY) LTD (AAV) is a private company registered in terms of the laws of South Africa, with registration number 2004/020746107 and with its registered address at 8th Floor, Sinosteel Plaza, 159 Rivonia Road, Sandton. The Companies and Intellectual Property Commission records of AAV is attached as x- THE PROTECTED ENVIRONMENT The declaration under NEMPAA 20. 21. 22. The Mabola Protected Environment was declared under section 28 of NEMPAA on 22 January 2014. That Act prescribes the purposes for which a protected environment may be declared and a public consultation process to be followed before a protected environment is declared. Notices of intention to declare the Mabola Protected Environment were published on 10 May 2013 and 9 August 2013 and, after public consultation, the declaration was made on 22 January 2014. A copy of the notice in the Government Gazette giving notice of this declaration is attached, marked Protected Environment notice"). As appears from the Protected Environment notice, the purposes of the declaration, in accordance with the provisions of NEMPAA, are as follows:- 22.1. to enable the owners of the land to take collective action to conserve biodiversity on their land and to seek legal recognition therefor; 22.2. to protect the area if the area is sensitive to development due to its biological diversity, natural characteristics, scenic and landscape value and the provision of environmental goods and services; 22.3. to protect a specific ecosystem and to ensure that the use of natural resources in the area is sustainable. 23. 24. I03 Factors and motivations supporting the declaration of the Mabola Protected Environment to give effect to those purposes are outlined below. Copies of the documents, or relevant extracts, referred to below will be made available upon request. As part of the declaration process, the MTPA submitted a comprehensive motivation in support ofthe declaration of the Protected Environment dated January 2013. A COpy is attached marked In this motivation, the MTPA summarised the ecological and hydrological importance of the area and argued in favour of land use in the area that is compatible with biodiversity conservation, such as ecotourism and livestock farming. lt identified coal mining as a significant risk to the conservation of this critical biodiversity area. Wakkerstroom Area identified as requiring urqent and priority protection in qovernment adopted protected area plans 25. 26. 27. The South African government has a duty in terms of section 24(b)(ii) of the Constitution of the Republic of South Africa, 1996 to protected the environment for the benefit of present and future generations through reasonable legislative and other measures that promote conservation. One such legislative measure was the enactment of NEMPAA. ?Reasonable other measures? would include the declaration of protected areas in terms of NEMPAA in accordance with a strategy, or strategies. The Wakkerstroom/Luneburg area is identified in the National Protected Areas Expansion Strategy Expansion Strategy?) as an area that requires urgent legal protection. The Expansion Strategy was commissioned by Department of Environmental Affairs and Tourism (DEAT) (now Department of Environmental 10 lb log; Affairs and endorsed for implementation by statutory role-players including national conservation agency South African National Parks, and provincial conservation agencies such as MTPA. 28. The Expansion Strategy provides that ?[t]he Mpumalanga Mesic Grasslands focus represents opportunities to conserve poorly protected grassland and bushveld vegetation types as well as whole river reaches and threatened river types. It was also identified as a national priority in the Grasslands systematic biodiversity plan."2 29. It also requires the development and adoption of area specific protected area plans. In terms of that plan, the Mpumalanga Protected Areas Expansion Strategy (2009), the Wakkerstroom/Luneburg area is a ?priority 1? area.3 Irreplaceable biodiversity value of the Wakkerstroom area recognised in Mpumalanqa government conservation plan 30. The Mpumalanga Biodiversity Conservation Plan of 2006 was developed by the MTPA and the Mpumalanga Department of Agriculture and Land Administration to guide conservation and land use decisions in support of sustainable development in Mpumalanga. 31. The MBCP is founded on an extensive biodiversity database compiled over the last 21 years by the Province's conservation biologists. 2 Government of South Africa National Protected Areas Expansion Strategy (2008) pp.27-28. 3 Mpumalanga Tourism and Parks Agency Mpumalanga Protected Areas Expansion Strategy (2009) pp.20-21 4 Available at Pibiodiversithssessmerit.asp (last viewed on 2 March 2015). 11 734 106' 32. The Wakkerstroom area is classified in the terrestrial biodiversity assessment5 (terrestrial assessment) as of ?irreplaceable? biodiversity value. 33. irreplaceable ecosystems, comprising a mere 2.4% of Mpumalanga Province, are described in this plan as follows: ?Irreplaceable: Irreplaceable areas are those of highest biodiversity value outside the formal PA network. They support unique biodiversity features, such as endangered species or rare habitat patches that do not occur anywhere else in the province. These features have already been so reduced by loss of natural habitat, that 100% of what remains must be protected to achieve biodiversitv gage?ts. All land in this category must be managed for biodiversity conservation to meet the targets set. All development must be strictly controlled in line with biodiversity conservation objectives." (own underlining). 34. The terrestrial assessment furthermore identifies this area as a ?focus area,? the importance of conserving which is described as follows: ?Value: important sub-catchment; grassland and forest vegetation types; important grassland patch; threatened plant species; golden mole; blue and watt/ed crane nest sites; endemic grassland birds. These highveid grasslands are amongst the most threatened. Pressures: coal mining; timber plantations; agriculture; alien plant invasion? (own emphasis). 35. The MBCP Aquatic assessment6 (aquatic assessment) also suggests that the Wakkerstroom Luneburg area is of irreplaceable biodiversity value. 5 Available at (last viewed on 22 February 2015) 6 Available at I'lf'jfui?lgri?igy?ml r171; ii 11?: (last viewed on 22 February 2015). 12 (06 Collective multi-stakeholder action to conserve biodiversitv and qive lean protection to the Grassland Biome 36. 37. 38. 39. The multi-stakeholder Grasslands Programme was launched in 2008 as a partnership between government, non-governmental organisations and the private sector to mainstream biodiversity into the Grassland Biome, with the intention of balancing biodiversity conservation and development imperatives in a production landscape. The Programme was catalysed through an $8.3 investment from the Global Environment Facility, managed by the United Nations Development Programme and implemented by SANBI and approximately 26 partner organisations. Following the launch of the Grasslands Programme in 2008, SANBI, the MTPA and other partner organisations, including the World Wide Fund for Nature South Africa (WWF), BirdLife South Africa and the Endangered Wildlife Trust, embarked on a process to attain legal protection for the most threatened Grassland Biomes in South Africa. The Wakkerstroom/Luneburg grasslands was identified by the various stakeholders as such a biome. As most of the land comprising this biome is privately owned, it was decided that the declaration of a protected environment under NEMPAA in respect of this area would afford the best protection to that particular Biome. The land owners were consulted about a proposed declaration of a protected environment in respect of their land in a process that lasted roughly five years. By 2013, all of the affected land owners had given their written consent for the declaration of the Mabola Protected Environment. 13 IN 40. The declaration of the Mabola Protected Environment therefore gives effect to the purpose in section 28(2)(b) of NEMPAA to enable the owners of the land to take collective action to conserve biodiversity on their land and to seek legal recognition therefor. National Freshwater Ecosystem Priority Area and Stratequ Water Source Area 41. The Wakkerstroom area has been classified as a National Freshwater Ecosystem Priority Area (NFEPA) by the South African National Biodiversity Institute as part of the National Freshwater Ecosystem Project, funded by the Water Research Commission, the Council for Scientific and Industrial Research SANBI, the Department of Water Affairs (now the Department of Water and Sanitation) and DEA. 42. The NFEPA Atlas7 shows that the Wakkerstroom area is a priority wetland and river ecosystem. River Freshwater Ecosystem Priority Areas are rivers that are still in relatively good ecological condition occurring in healthy catchments and should remain in relatively good condition to contribute to national biodiversity goals and support sustainable use of water resources. The surrounding land and stream network need to be managed in a way that maintains the good condition of the river reach. Similarly, Freshwater Ecosystem Priority Wetlands and Wetland Clusters must be maintained if they are in good ecological condition and rehabilitated to the best attainable ecological condition if they are in a substandard ecological condition.8 43. More recently, the Wakkerstroom area has been classified as a ?Strategic Water Source Area"9 (SWSA), which was also determined by the National Freshwater 7 Nel. et al Atlas of Freshwater Ecosystem Priority Areas in South Africa: Maps to Support Sustainabie Development of Water Resources (2011) (NFEPA Atlas) p.20. 3 NFEPA Atlas p.14. 9 Available at (last viewed on 22 February 2015) . 14 Ecosystem Priority Area Project by CSIR through co-funding from a Project for Ecosystem Services funded by the World Bank established Global Environmental Facility and WWF. SWSAs are those areas that supply a disproportionate amount of mean annual runoff to a geographical region of interest. These areas are important because they have the potential to contribute significantly to overall water quality and supply, supporting growth and development needs that are often a far distance away.? These areas make up 8% of the land area across South Africa, Lesotho and Swaziland, but provide 50% of the water in these countries. Deterioration of water quality and quantity in these areas can have a disproportionately large negative effect on the functioning of ecosystems and the overall sustainability of growth and development in the regions they support. They therefore need to be appropriately managed, by, inter alia, . maintaining healthy functioning riparian zones and wetlands; ensuring good agricultural management leads to soil conservation that supports the water cycle; avoiding activities that reduce stream ?ow (eg. irrigated agriculture and forestry plantations) and Where this is not possible ensuring careful regulation of these activities; minimising ground water abstraction; clearing invasive alien plants; [and] restoring the hydrological functioning of degraded landscapes." 15 l0?l Listed as endangered ecosystem on list publishgl in terms of the National Environmental Management: Biodiversity Act 46. The WakkerstroomlLuneburg Grasslands Threatened Ecosystem1O is listed as an ?endangered ecosystem" in the National List of Ecosystems that are Threatened and in Need of Protection published by the Minister of Environmental Affairs in terms of NEMBA in Government Gazette No. 34809 as Notice 1002 on 9 December 2011 (Listed Ecosystems). Endangered ecosystems are . ecosystems that have undergone degradation of ecological structure, function or composition as a result of human intervention, although they are not critically endangered ecosystems.?11 The purposes of listing ecosystems are to ?conserve a representative sample of all components of biodiversity (genes, species, and and to ensure the continuing functioning of ecological and evolutionary processes that allow biodiversity to persist over time.?12 According to these Regulations, only 2% of the original range of this ecosystem remains13 and it is marked by ?very high This ecosystem hosts a myriad of threatened or protected species, three threatened vegetation types and important subcatchments, pans and wetlands.15 Important status in local lnteqrated Development Plans Gert Sibande District Municipality integrated Development Plan 47. The area in question falls within the Gert Sibande District Municipality. The Spatial Development Plan (SDP) for this municipality states that the ?sensitive upper 10 National List of Ecosystems that are Threatened and in Need of Protection published in Government Gazette No. 34809 as Notice 1002 on 9 December 2011 (Listed Ecosystems Regulations) p.302. 1? lbid p.21. ?2 lbid p.17. 13lbid p.301. '4 lbid p.36 15lbid p.302. 16 IIO must be actively catchments and wetlands in the Wakkerstroom area protected, managed and enhanced so as to ensure that they are not degraded by mining, forestry, agricultural and human settlement activities."17 According to the SDP, compatible economic activities, including forestry and tourism related activities, must be allowed to continue in these areas.18 Dr Pixie-v Ka isaka Same Local Municipality integrated Development Plan Environmental Management Framework 48. The area in question also falls within the Dr Pixley Ka lsaka Seme Local Municipality (PKISLM). Under the heading, "Environmental Management Framework? in this municipality?s Integrated Development Plan it is stated that the municipal area is ?characterised by many wetlands and pan systems, and is an important water catchment area. Many endemic and threatened grass species occur in the area and of particular significance are the areas around Wakkerstroom and The PKISLM is also strategically important because it contains the sources of three river systems, including an important source of water for the Gauteng region.?20 CONFLICT WITH STATED NATIONAL GOVERNMENT POLICIES ON MINING IN MPUMALANGA 49. The decision to grant the mining right is in conflict with stated national government policies on mining in Mpumalanga. 16 Available at two n??gg?onmcom (focrnanzgiternids?g (last viewed on 16 March 2015) p.117. ?7 p. 118. 1" 118. ?9 Available at i4 nail (last viewed on 16 March 2015) pp. 328-330. 2" p.328. 17 50. 51. 52. Hi In April 2010, the MPTA submitted an application to the DMR in terms of section 49 of the MPRDA to declare the Wakkerstroom Wet Grasslands area as an area in which mining is prohibited (?the section 49 application"); On 31 August 2010, the Minister of Mineral Resources imposed a moratorium on the granting of all prospecting rights (GN R788 in 8633511 of 31 August 2010). That moratorium was extended on 28 February 2011 for one month until 15 April 2011, except for Mpumalanga where the moratorium was extended to 30 September 2011 (GN R160 in 6634057 of 28 February 2011 as amended by GN R287 in GG34171 of 31 March 2011). At the time of the extension in February 2011,, Minister of Mineral Resources Susan Shabangu was quoted as telling a media briefing on 8 February 2011 that the reason for not lifting the moratorium in Mpumalanga was that the DMR had ?challenges bigger than what we expected, so we will lift eight provinces, and Mpumalanga will for two to three months before we lift the moratorium." According to the Minister, the biggest challenge in Mpumalanga was environmental matters, ?issues of ecology?. ?You find sensitive areas where rights have been granted,? she was quoted as saying. ?We intend to address that matter, hence we are not going to lift the moratorium, so as to make sure that we respond to the challenges of nature. Unfortunately rights [were granted, but we'll have to address those issues." She said her department was working closely with the department of environmental affairs."21 21 18 53. 54. 55. HZ In August 2011 the MTPA re-submitted the section 49 application. The first application was mislaid. The section 49 application contained a detailed analysis ofthe importance of the WG including that: - 53.1. the area is critically important from a water production perspective; 53.2. the area is largely classed as irreplaceable by the MBCP and thus crucial for the achievement of provincial and national conservation targets due to the biodiversity features located there; 53.3. the area is located in an endangered ecosystem; and 53.4. the area falls within provincial and national priority Protected Area expansion zones (as reflected on Map 1 of Annexure 11) The DMR's Annual Report for 2011/12 states that ?[t]he previous extension of the moratorium in Mpumalanga was due to the complex nature of environmental challenges in that province. It culminated in over 41 Rights that are located in Wakkerstroom and Chrissiesmeer being identified as those belonging to the category of environmentally sensitive areas and consequently action has been taken to prohibit mininq within those areas."22 (our underlining). A copy of the front page of the annual report and the relevant extract are annexed marked This same statement was also relayed by the Minister of Mineral Resources to the National Council of Provinces during her Budget Vote Speech for the DMR on 24 May 2012:23 ?Honourable members would recall that we had extended the moratorium 22 Department of Mineral Resources Annual Report 2011/12 p.18 23 Minister Susan Shabangu Budget Vote Speech 2012 p.3. 19 56. HS in Mpumalanga due to the complex nature of environmental challenges in that province. This culminated in over 41 Rights that are located in Wakkerstroom and Chrissiesmeer being identified as those belonging to the category of environmentally sensitive areas. Consequently we have taken action to prohibit mining within these areas." A copy of the budget speech is annexed marked The Regional Officer of the DMR has visited the WG area and acknowledged that the section 49 application has merit due to the hydrological and environmental sensitivity of the area. 57. As at date hereof, to the Appellants? knowledge, the Minister of Mineral Resources has not yet made the requested declaration under section 49 of the MPRDA. OBJECTIONS BY OTHER ORGANS OF STATE TO MINING RIGHTS APPLICATION Department of Environmental Affairs 58. 59. On 27 September 2012, AAV's environmental assessment practitioner (EAP) submitted an application for environmental authorisation for various activities listed in the Listing Notices published under the National Environmental Management Act, 1998 (NEMA) that the mine intends to conduct. On 16 May 2014, the DEA addressed a letter to EAP in which it stated that it rejects environmental impact assessment report (EIAR). Copies of this letter, attached marked were also sent to AAV, the Mpumalanga Department of Economic Development, Environment and Tourism and the DMR. 20 qt; 60. The most important reasons for the rejection of the EIAR for the purpose of this appeal are: 60.1. 60.2. AAV failed to propose an alternative layout plan for the mine that would allow the mine to coexist with the sensitive environment; and biodiversity concerns: 60.2.1. 60.2.2. 60.2.3. 60.2.4. the EIAR did not consider the status of the ecosystem in terms of the Listed Ecosystems under unless a ground-truthing study suggests that the proposed mining area is not a critical biodiversity site, as it is classified in terms of the MBCP, the EIAR is fatally flawed; due to the sensitivity of the aquatic ecosystems, the hydrological importance of the area and the potential significant impact of the proposed mine on these ecosystems mainly through the dewatering of the wetlands and pans in the area, the EIAR ?cannot be considered without the identification of water areas, the water users dependent on the water, and a quantification of the dewatering effect on economic activities including increase in droughts and floods?; the recommendation in the EIAR that additional ground and surface water studies be undertaken in order to adequately quantify the anticipated impacts of acid mine drainage from the proposed mine on the receiving environment is supported; 21 ll 60.2.5. the proposed mining area falls within an Important Bird Area which hosts endangered and threatened endemic and other bird species; and 60.2.6. as the mining area borders on Protected Areas to the south and the east and some of the land parcels in the application are part of a declared protected environment, a mininq licence (sic) cannot be qrantedr_without the express permission of the Minister o?nvironmental Affairs" (own emphasis). 61. As far as the appellants are aware, an amended ?nal was submitted to the DEA in or about October 2014 (after the mining right had already been granted) and, at the time of the lodging of this appeal, application for environmental authorisation is still pending. Department of Water Affairs (now Department of Water and Sanitation) 62. In terms of the former section 40 of the MPRDA, 2? the Minister is enjoined to consult with any State department which administers any law relating to matters affecting the environment when considering an environmental management programme submitted for approval. 63. After having been consulted by the DMR, the Department of Water Affairs (as it was then) (DWA) addressed a letter to the Mpumalanga Regional Manager of the DMR on 2* This section has been repealed by the Mineral and Petroleum Resources Development Amendment Act, 2008 (MPRDAA), but it is still applicable for the purposes of mining right application as the application was lodged prior to the commencement of the MPRDAA. 22 64. lit: 10 January 2014. The DWA expressly stated in the letter that it did not support the proposed mining development. A copy of this letter is attached as The concerns concerning the draft environmental management programme for the proposed Yzermyn Underground Coal Mine included the following: 64.1. 64.2. 64.3. 64.4. 64.5. the location of the proposed mine in known sensitive habitats and environments as well as adjacent to the KwaMandlangampisi Protected Environment, ?[t[he notes the site location with great concern"; the impact of the mine on critical biodiversity sites is alarming even after mitigation is considereg (own emphasis); the projected impact of the dewatering of wetlands and pans through the abstraction of water from the identified boreholes is concerning; the positioning of the edit and the discard dump in wetlands constitutes a ?a risk and a fatal flaw;? no detailed wetland assessment was undertaken in the greater area to be impacted upon by the underground mining and associated cone of depression from the dewatering activities or groundwater contamination plume," meaning that the precise impacts on wetlands in the mining area and abutting the mining have not been predicted (this is particularly relevant because of the ?conditions? imposed by the DMR when granting the mining right); 23 64.6. 64.7. 64.8. 64.9. 64.10. 64.11. H7 the proposed mine will lead to decline in water quality in the area, and is potentially prone to acid mine drainage decant after the closure of the mine; at least 42% of the proposed mining area can be classified as "wetland;? mining threatens the existing tourism sector in the area as well as potential growth in ecotourism in the regions; although the mine will create job opportunities, the majority of these job opportunities will be reserved for skilled workers from outside of the surrounding areas; the greatest fatal flaw of this site is situated within the National Freshwater Ecosystem Priority and that it is predicted that mining will lead to the dewatering of subsurface water resources and the pollution of both surface and subsurface water resources that will ?extend to wetland FEPAs in the near vicinity;? and number of threatened, endangered and vulnerable flora and fauna had proved to be solely dependent on the existence of the wetlands that seem to be threatened by the proposed mining activity" and that even the [s]lightest [of] changes in water quality and quantity are detrimental to the health of the aquatic biota.? Mpumalanga Tourism and Parks Agency 65. The MTPA is established in terms of the Mpumalanga Tourism and Parks Agency Act of 2005, Act No. 5 of 2005. The entity came into existence on 1 April 2006 following 24 66. 67. 68. the merger of the now defunct Mpumalanga Parks Board and Mpumalanga Tourism Authority. Section 3 of the MTPA Act defines the Objective of the Agency as follows: "To provide for the sustainable management and promotion of tourism and nature conservation in the Province and to ensure the sustainable utilisation of natural resources." in pursuing its objects, the Agency shall 66.1. 66.2. 66.3. 66.4. provide for effective management and conservation of bio-diversity and eco- systems within the Province; develop and ensure effective management of protected areas; foster, promote and sustainably develop and market tourism; promote and create socio-economic growth and transformation within the tourism and conservation industry, thereby creating economic and employment opportunities for previously disadvantaged individuals and local communities in the Province. The MTPA objected to the granting of the mining right. Its letter dated 29 August 2012 is attached marked The MTPA objected on the bases that: 68.1. the area in which AAV wants to mine is a proposed Protected Area under NEMPAA and that the final stage of the declaration was approaching, 25 69. 70. 68.2. 68.3. 68.4. 68.5. the work of expanding the Protected Areas in Mpumalanga was part of the National Grassland Programme of 2008; the area is classified as a sensitive area from a biodiversity conservation perspective, is identified as such in the MBCP and was endorsed by the Mpumalanga Provincial Cabinet in 2008; the properties also form part of the area proposed for exclusion from mining in terms of section 49 of the and the MTPA therefore objects to any mining activities within the Wakkerstroom Wet Grasslands Area. The MTPA also objected to the granting of environmental authorisation in respect of the proposed Yzermyn mine. Its letter dated 27 October 2014 is attached, marked In this letter, the MTPA objected on the bases that: 70.1. 70.2. 70.3. the amended site layout plan, accompanied by additional specialist studies pertaining to the status of the impacted ecosystem and the impact of the mine on wetlands and stream flow, is inadequate, vague and therefore fundamentally flawed; it is unlawful to mine in a protected environment without the written consent of the Minister of Environmental Affairs and Minister of Mineral Resources; it is undesirable for coal mining to be conducted in the Mabola Protected Environment; 26 [20 70.4. the environmental impact assessment report (EIAR) accompanying the environmental authorisation application does not make adequate provision for the mitigation of future permanent modification and degradation of groundwater dependent ecosystems such as wetlands and springs in the proposed mining area; 70.5. it is not clear from the EIAR what effect subsidence will have on the topography, roads and underground water flows after mining; 70.6. the EIAR does not make provision for a sound rehabilitation plan for the forecasted post-mining acid mine drainage decant; 70.7. the alternative site layout plan for the discard dumpsite is inappropriate as it is situated in close proximity to a network of wetlands, seepage wetlands and partly within the ?1km restricted zone? of a tributary of the Assegaai River, which river is classified as a Critical Biodiversity River in terms of the Mining and Biodiversity Guideline, 2013. (The development of the Mining and Biodiversity Guideline: Mainstreaming Biodiversity Into The Mining Sector was initiated by the Chamber of Mines and the South African Mining and Biodiversity Forum (SAMBF), in partnership with DEA and the DMR, and with technical input and coordination by the SANBI Grasslands Programme); 70.8. coal is an abundant resource in South Africa and can be mined in less ecologically sensitive areas; and 70.9. the impact of the mine, if not adequately mitigated, could have a devastating impact on affected vulnerable and endangered ecosystems. 27 71. 72. ill On 3 March 2015, the MTPA submitted comments on the amended final environmental impact assessment report submitted by AAV in furtherance of its application for environmental authorisation to EAP. These comments are in the form of a letter and is attached marked In this letter the MTPA made the following submissions to DEA: 72.1. 72.2. 72.3. 72.4. 72.5. 72.6. the declaration of the Mabola Protected Environment is an important step towards conserving an important biodiversity area and therefore for reaching biodiversity goals in Mpumalanga; coal mining is not a desired land use in the Mabola Protected Environment, and is not compatible with biodiversity conservation; the baseline environmental study is fundamentally flawed; the EIAR lacks a detailed cost analysis of the required post-mining water treatment, sourcing water for irrigation and wetland rehabilitation; AAV has already contravened the environmental legislative provisions by boring drill holes in wetlands during the prospecting phase; and there is no way in which agriculture, conservation, tourism and coal mining can co-exist in the Mabola Protected Environment. 28 73. 74. 75. 76. (22 OBJECTIONS FROM NON-STATE PARTIES TO APPLICATION FOR A MINING RIGHT AND ENVIRONMENTAL AUTHORISATION Strong written objections were raised during the course of the consultation process in respect of the mining right and environmental authorisations by On 27 September 2012, after receiving the Background Information Document for the proposed Yzermyn Underground Mine, wrote a letter of objection to EAP to the granting of its client?s proposed mining right application in respect of properties that fall within what is now the Mabola Protected Environment. A copy of the letter is attached marked When the objection was lodged, a process was already undenNay to declare the Mabola Protected Environment. The grounds of objection included:? 76.1. the area affected by the mining rights application falls within a key Protected Area expansion zone for WWF's work as the Enkangala Grassland project and SANBI grassland programme in partnership with 76.2. portions of the area fall within national and provincial Protected Area expansion zones (as depicted on Map 1 of the letter) 76.3. all of the affected areas are located in an irreplaceable aquatic biodiversity area for Mpumalanga province; 29 I, ?rmware ii WWF South Africa Reg. No: 003-226 NPO Wodd Wide Fund For Nature VAT NO: 4320122481 Web: Head Office: Gauteng Of?ce: Boundary Terraces. Ground Floor Bridge House 1" Floor. President Place Mariendahi Lane, 1 Hood Avenue 770? ROSEBANK 2196 E, a Box 23273. Eftqe?BSmtigw - - CLAREMONT, 7735 va 8 as for a planet BENMORE 2010 Tel: +272165756?? Tel: +2711447 1213 Fax: 086 535 9433 Fax +27 11 447 0365 Attention: Lizelle Prosch/Brent Holme WSP Environment 8: Energy South Africa WSP House, Brya nston Place, 199 Bryanston Drive, Bryanston, 2191 Tel: +27 11 361 1389 Fax: +27 86 532 8685 Mobile: +27 83 518 2336 Email: Date: 27th September 2012 Dear Lizelle and Brent, Re: Obiection to Mining Rights Application by Atha Africa Ventures for proposed Yzermvn Underground coal mine located approximately 20kms from Wakkerstroom in the Finley Ka Seme local municipali? 1. Thank you for all previous emails and informal communications in which you supplied us with the Background Information Document (BID) on your client?s (Atha Africa Ventures (PTY) LTD hereafter referred to as ?Atha?) application for a mining right within the affected area. As already indicated in our email and verbal responses to you, there are serious and substantial concerns about the sensitivity of the area in which your client proposes to mine for coal. We hereby lodge our strong objection to Atha?s mining right application on numerous grounds as recorded below. 2. The area affected by your clients application fall within a key protected area expansion zone for our work as the WWF-SA Enkangaia Grassland Project and SANBI grassland programme in partnership with Mpumalanga Tourism and Parks Agency (MTPA) . In addition, portions of the area fall within National and Provincial Protected Area expansion zones (see Map 1 depicting the provincial and national protected area expansion zones). Atha?s mining right application is thus opposed on the grounds that it will prevent provincial and national protected area expansion targets from being achieved should consent be granted by the DMR. READ (CHAIRMAN). TABOARDMAN. (CHEF EXECUTIVE). CAROLLB. GOODWIN (EXECUTIVE). DM LAWREPBE. WEE. JMATSAU. DIM MOKABA, MBIMANG. WMOOSA (DEPUTY CHAIM. mamas. PHLUPS, FJ VANZYL. MEWILSON l2 Map 1 depicting provincial and national protected area expansion zones 3. All ofthe affected properties are located in an irreplaceable aquatic biodiversity area for Mpumalanga Province. Should any form of coal mining be pursued, it will have extremely negative impacts on this important water production area. Additionally, the Atha properties are located in a National Freshwater Ecosystem Priority Area (NFEPA) and any form of mining in such an area is considered inappropriate and of severe consequence to sustained ecosystem functioning (See map 2 depicting provincial aquatic biodiversity importance and map 3 depicting Atha?s mining right application is thus opposed due to serioUs aquatic and hydrological sensitivities. e?qesru \w Luglnd cam-Ia Mm Appll?hnn 5 Aquatic. Blodlvanlty Subcatchmantl ?Irreplaceable Highly a Nmaun Map 2 depicting provincial aquatic biodiversity importance Ema I hungrqu Full salmon DIEM Fun SIM-arr other Fun PM Club! Haw mm or Emmy FEM NFEPA Rn! 0mm- Summary cutmm ?ue! FEPA FHMFEM Full suppm Mu awn! Map 3 depicting 4. Map 4 (below) depicts the position of your clients mining right application in relation to the existing and proclaimed Kwamandlangampisi Protected Em?ronm?nt (KPE) and also illustrates WWI-2 the location of the pmposed Mabola Protected Environment (MPE) and Tafelkop Nature Reserve (TN R). Any mining activity adjacent to the KPE is hereby opposed due to the obvious environmental impacts such activities would have on the adjacent existing and proposed protected areas. All documentation in this regard has been supplied to you as consultants and we request that you draw specific attention to such documentation to be included as part of this objection to the DMR. . 1 Legend 'ji: cam: Afnca Mining Applicalmh Mahala Protected Enwronrnenl g_ Taielkop Nature Reserve 3: Protected EnvnonmenHKPEI Map 4 depicting location of Atha mining right application in relation to the Kwamandlangampisi Protected Environment (KPE) and proposed protected environments/nature reserves 5. As mentioned in our discussions with you and your client, we indicated that the properties fall within the proposed Wakkerstroom Wet Grasslands section 49 exclusion zone which has been lodged with the DMR. See map 5 showing the exclusion zone in relation to Atha?s mining interests. A visit from the DMR regional officer earlier this year resulted in the regional manager conceding that the section 49 application was legitimate due to the obvious hydrological and environmental importance ofthe area. The DMR Mpumalanga regional office has thus lodged the WWG section 49 application with the Minister for processing and consideration. he reasons for the WWG section 49 submission are numerous but in summary: a) The area is critically important from a water production perspective la'i The area is largely classed as irreplaceable by the MBCP and thus crucial for the achievement of provincial and national conservation targets due to the biodiversity features located there The area?is located in endangered and vulnerable threatened ecosystems (in terms of The area falls within provincial and national priority protected area expansion zones c) d) We thus object to your clients application within this proposed section 49 area and remind the DMR of their acknowledgement that the area is'highly sensitive from a hydrological and biodiversity perspective. All this information has been supplied to yourselves as consultants representing the interests of your client. We request that you draw the attention to the WG 549 submission and that all documentation provided to you in this regard be included as part of this objection to the DMR. Legend Atha Africa Mining Application 549 farms Map 5 showing portions of proposed Wakkerstroom wetland Grass Section 49 exclusion zone in relation to Atha's mining right application 6. Atha?s mining application additionally falls within areas that are classed as threatened ecosystems, more specifically "endangered". See map 6 depicting the location of Atha?s interests in the context of these endangered systems. We thus object to Atha?s application within this endangered system due to the obvious negative impact their mining activities would have on such sensitive areas. ll?E Legend mAtha Africa Mining Application Threatened Ecosystems status illustrating location of Athafs application within endangered threatened ecosystems 7. Additionally, and as mentioned in paragraph 5, the area affected by Atha?s application is classed as largely irreplaceable, highly significant and important and necessary by Mpumalanga Tourism and Parks Agency (MTPA) in their Mpumalanga Biodiversity Conservation Plan (MBCP). See map 7 illustrating this fact. Such classification was con?rmed during field assessments conducted for the Mabola and Tafelkop Protected Environment and Nature Reserve submission development to the MEC. The relevant documents have been provided to you as consultants in the Mabola motivation document which we request be included as part of this objection. We thus object to Atha?s mining application which will negatively a?ect these sensitive terrestrial biodiversity of these areas should they be granted a mining right and thus prevent the achievement of provincial conservation targets. I Legend CSAlha Ainca Mining Application MBCP ASSESSMENT H1 - Protecled . II2 - irreplaceable no - Highly Sigm?canl 4 - important ii. Necessary 5 - Leas! Concern 6 - No Natural Habitat Map 7 illustrating Atha's application in the context of MBCP 8. Finally, we draw attention to the fact that Atha?s North Western portion of their application falls within an important ecological corridor. Should Atha be granted a mining right in this area, their activities could impact on the functionality of this corridor and thus have an additional negative impact over and above those already outlined in paragraphs 2 7. We thus again object to their application on the basis that it falls within an ecological corridor. See map 8 illustrating the proximity of Atha?s interests in relation to said ecological corridor. (30 Legend CSAtha Africa Mining Applicant-in nun-MP Ecological corridors Map 8 depicting Atha?s mining interests in relation to Ecological Corridors 9. We therefore lodge our objection over any mining right application within this sensitive area for reasons explained in paragraphs 2 8. We remind the regional office of the DMR that it has already indicated support for the WWG section 49 exclusion submission which affects the area targeted by Atha?s application. Additionally, the regional office has visited the area and indicated that it is indeed a valid application due to environmental sensitivities. The Honourable Minister Susan Shabangu stated in her recent budget speech that sensitive areas such as Wakkerstroom should be protected from mining due to obvious environmental sensitivities. This application falls within the Wakkerstroom area and besides defying the intentions of the minister, will directly impact upon the area and the broader environment should mining be allowed to proceed. By Atha?s own admission, they are a new mining concern entering the coal market. We thus have additional reservations about their ability to address our concerns and effectively implement a mining operation that will not severely impact the sensitive area in which they are seeking such rights. We thus object in the strongest terms to Atha?s mining right application and-request the following: a) Detailed responses to each and every concern as highlighted within the body of this letter by Atha indicating how they will mitigate address and avoid the impacts their proposed operations will have. b) A detailed cost accounting of the financial resources that will be used for such proposed mitigation 9 0 WWI-2 Once we have reviewed their responses, we request the right to respond again with our concerns should we feel that they have not been adequately addressed. We again emphasize that we are in no way supportive of any mining in the affected area and thus reiterate our strongest objection. We request this letter be included in its entirety along with all relevant documentation as our initial objection to this mining right application. Yours sincerely Anus Bums Manager: WWF-SA Grasslands Programme 0 Box 21106, Newcastle, 2940 Tel: +27 034 313 6158 Mobile: +27 084 400 1234 Fax: +27 086 517 4073 Skype: decarabia1 Email: abums@wwf.org.za I egtgroiect@mweb.co.za Web: WWF for a living planet? wwr?2 To: Eumari Vosloo r77- Road BERARIO Johannesburg 2195 Tel: on 4312251/2291 Fax: 086 664- 2908 0 Date: 27th October 20.14 Dear Eumari, Amelia it. l'2/ for a living planet? illMiF South Africa World Wide Fund For Nature Head Of?ce: Boundary Terraces, Bridge House 1?t Floor. Marlendahi Lane, NEWLANDS. 7700 Box 23273. CLAREMONT. 7735 Tel: +27 21 657 6600 Fax: 086 535 9433 (32. Reg. ND: cos-223 NPD VAT ND: 4320122431 Web: wvrw.vwri.org.za Gauteng Office: Ground Floor President Place 1 Hood Avenue ROSEBANK 2196 Postnei Suite 436 Private Bag X9 BENMORE 201 0 Tel: +27114471213 Fax: +2711 447 0365 Re: Objection to Mining Rights Application by Atha Africa Ventures LTD for proposed Yzermvn Underground coai mine located in the Pixlev Ka Some local municipality (Ref: 14/12/16l3B/216931 Thank you for all previous emails and communications in which you supplied us with the amended for your client's (Atha Africa Ventures (PTY) LTD hereafter referred to as "Atha?) application for a mining right within the affected area. There are serious and substantial concerns about the sensitivity of the area in which your client proposes to mine for coal. We hereby again lodge our strong objection to Atha?s mining right application on numerous grounds as recorded below. We also include an extract from the executive summary of a report supplied to Atha on the 13th September 2013 by Natural Scientific Solutions CC and circulated for general comment (see attached copy of the report in email). The summary explicitly states that the proposed Yzermyn mine should "be NO GO in terms of Biodiversity because of the imgact of the proposed underground mining on the supply of water to the surface water resources (due to the de-vvatering activities) and the potential groundwater contamination. These aspects will have a signi?cant impact on aquatic and wetland ecosystem functioning and biodiversity in a far greater area than the underground mining area. This aspect of the mining groiecl:I aloneI is in strong conflict with international, national and provincial legislation. policies and guidelines. A high number of Cl species were detectgj?nd most h?Ltin the proposed underground mining and Eff?ace infrastructure areas was assigned a Veg High or High sensitivity. Most potential impacts of the mining operation had 3 HIGH overall significance ratingI even with mitigation. Moreover, the cumulative impacts of numerous mining applications in the study region are of serious concern.? Reference: Page from Natural Scientific Solutions CC report. The report executive summary goes further to add: "Even READ TA BOAHDMAN. Dr DU PLEBSIS (CHEF GCAROLLS. GOODWIN (EXECUTIVE). UMme MAKANJE. MATSAU. DIM MOKABAM MSIMANG. MU MOOSA (DEPUTY CHAIM, MOROHE. AJ PJ VAN ZYL. MEWESCN Wk fowl?) 2 BS wwri though N55 recommends that the proiect is a NO GO from a Biodiversity perspective, mitigation measures have been discussed should the project go ahead.? it is on the basis of the original mitigation measures submitted to the DEA that the application was justifiably rejected and has now reappeared with new proposed mitigation measures submitted by yourselves on behalf of Atha. We dispute and thus reject the mitigation measures and amendments proposed by yourselves on the basis that NatUrai Scientific Solutions CC along with ourselves as lAP?s have provided ample evidence as to why the preposed Yzermyn should 993 be supported and therefore not go ahead. Altering proposed approaches and methods in an attempt to facilitate a positive decision from DEA for your client does not address the central issues of sensitivity as identified by the Natural Scientific Solutions CC report and ourselves. We therefore reiterate our objection to your clients proposed mine and sapport DEA in their rejection of the original We furthermore urge reject the amended version for reasons as already expressed and in addition for the following reasons: 1. The area affected by your clients application fall within a key protected areaexpansiori zone for our work as the Enkangaia Grassland Project and SAN BI grassland programme in partnership. with Mpumaianga Tourism and Parks Agency (MTPA) . In addition, portions ofthe area fall within National and Provincial Protected Area expansion zones (see Map 1 depicting the provincial and national protected area expansion zones). Atha?s mining right application is thus opposed on the grounds that it will prevent or hinder provincial and national protected area expansion targets from being achieved should consent be granted by the DMR and DEA. Logan's mm: nines Mining Application Ni? Front-tad Mn Expiration . .-. .n Mapl depicting provincial and national protected area expansion zones "r7 inf-K 2. All of the affected properties are located in an irreplaceable aquatic biodiversity area for Mpumalanga Province. Should any form of coal mining be pursued, it will have extremely negative impacts on this important water production area (as highlighted in the Natural Scientific Solutions CC report). Additionally, the Atha affected properties are located in a National Freshwater Ecosystem Priority Area (NFEPA) and any form of mining in such an area is considered inappropriate and of severe consequence to sustained ecosystem functioning (See map 2 depicting provincial aquatic biodiversity importance and map 3 depicting Atha?s mining right application is thus appos'eo' due to serious aquatic and hydrological sensitivities that cannot be mitigated. Martina Mining Application Aquatic Subutchmanlo irreplaceable 9:3 Highly Significanl lmportanl a. Napalm? Map 2 depicting provincial aquatic biodiversity importance (7W [311i ii'tii [335.- In" rummw mull Hr- Inn-wally mum was-A Dunc lulu-1?? MEMIPA than!? Map 3 depicting 3. Map 4 (below) depicts the position of your clients mining right application in relation to the Kwamandlangampisi Protected Environment (KPE) and also illustrates the location of the Mabola Protected Environment (MPE) and Tafelkop Nature Reserve (TNR). Any mining activity adjacent to the KPE and within the Mahala PE and Tafelkop NR is hereby opposed due to the obvious environmental impacts such activities would have on existing protected areas. A LIIDDI .H mm Mahala Ill-alum amour-mi mum anim- ?mammal IP51 Map 4 depicting location of Athagmining right appiication in relation to the Kwamandlangampisi Protected Environment (KPEJ and Mabola protected environments/ TafelKop nature reserves "2 l, 5 30 4. The prOperties fall within the proposed Wakkerstroom Wet Grasslands section 49 exclusion zone which has been lodged with the DMR. See map 5 showing the exclusion zone in relation to Atha?s mining interests. A visit from the DMR regional officer in 2013 resulted in the regional manager conceding that the section 49 application was legitimate due to the obvious hydrological and environmental importance of the area. The DMR Mpumalanga regional office has thus lodged the WWG section 49 application with the Minister for processing and consideration. he reasons for the WWG section 49 submission are numerous but in summary: a) The area is critically important from a water production perspective b} The area is largely classed as irreplaceable by the MBCP and thus crucial for the achievement of provincial and national conservation targets due to the biodiversity features located there c) The area is located in endangered and vulnerable threatened ecosystems (in terms of d) The area falls within provincial and national priority protected area expansion zones We thus object to your clients application within this proposed section 49 area and remind the DMR of their acknowledgement that the area is highly sensitive from a hydrological and biodiversity perspective. All this information has been supplied to your client and previous consultants representing the interests of your client. We request that you draw the DMR's attention to the WWG S49 submission and furthermore point out that the reasons for the 549 submission echo the sensitivities identified in the Natural Scientific Solutions CC report. Legend Mama Macaw 5n lam: Map 5 showing portions of proposed Wakkerstroom Wetland Grass Section 49 exclusion zone in relation to Atha?s mining right application ruff ?4 If 5. Atha?s mining application additionally falls within areas that are classed as threatened ecosystems, more specifically "endangered". See map 6 depicting the location of Atha's interests in the context of these endangered systems. We thus object to Atha?s application within this endangered system due to the obvious negative impact their mining activities would have on such sensitive areas. Legend mAlha Nnca Mining Application - Threatened Ecosystems Map 6 illustrating location of Atha?s application within endangered threatened ecosystems 6. Additionally, and as mentioned in paragraph 5, the area affected by Atha?s application is classed as largely irreplaceable, highly significant and important and necessary by Mpumalanga Tourism and Parks Agency (MTPA) in their Mpumalanga Biodiversity Conservation Plan See map 7 illustrating this fact. Such classification was confirmed during field assessments conducted for the Mabola and Tafelkp Protected Environment and Nature Reserve submission development to the MEC prior to their declaration in 2013 and furthermore supports the sensitivity assertions made by Natural Scientific Solutions CC in their report. The relevant documents have been provided to Atha. We thus object to Atha?s mining application which will negatively affect these sensitive terrestrial biodiversity of these areas should they be granted a mining right and thus prevent the achievement of provincial conservation targets. 7 8% .Legnnd Afnca Mining Applicalron MECP ASSESSMENT N1 - Protected HZ - Irreplaceable Fit: 3 - Highly SigniliCanl 4 - Important 8- Necessary 5 - Leasl Concern - No Natural Habitat Remaining Map 7 illustrating Atha?s application in the context of MBCP 7. We draw attention to the fact that Atha?s North Western portion of their application falls within an important ecological corridor. Should Atha be granted a mining right in this area, their activities could impact on the functionality of this corridor and thus have an additional negative impact over and above those already outlined in preceding paragraphs. We thus again object to their application on the basis that it falls within an ecological corridor. See map 8 illustrating the proximity of Atha?s interests in relation to said ecological corridor. A LIde camaAtnce Mining application- Eco-legal! corridors Map 8 depicting Atha?s mining interests in relation to Ecological Corridors ?rm? 8. We therefore lodge our objection to any mining right application within this sensitive area for reasons thus explained. We remind the regional office of the DMR (and alert DEA to the fact) that it has already indicated support for the WWG section 49 exdusion submission which affects the area targeted by Atha?s application and that the areas falls within a declared Protected Environment. Additionally, the DMR regional office has visited the area and indicated that it is indeed a valid application due to environmental sensitivities. The Honourable Minister Susan Shabangu stated in her 2012 budget speech that sensitive areas such as Wakkerstroom should be protected from mining due to obvious environmental sensitivities. This application falls within the Wakkerstroom area and besides defying the intentions of the minister, will directly impact upon the area and the broader environment should mining be allowed to proceed. By Atha?s own admission, they are a new mining concern entering the coal market. We thus have additional reservations about their ability to address our concerns and effectively implement a mining operation that will not severely impact the sensitive area in which they are seeking such rights. We thus object in the strongest terms to Atha?s amended mining right application. 9. We disagree with Eco Partners support for the proposed Yzermyn mine and furthermore question the accuracy of the assertion that such a mine would be in the "national interest?. The approach taken by Eco Partners appears to be subjective and an attempt to influence the DEA in favour of the client (Atha) when the balance of evidence (as supplied by ourselves, other lAP?s and Natural Scientific Solutions CC) suggests the proposed Yzermyn should not be supported. Supporting the development of a mine in such a sensitive location is certainly contrary to the national interest given the relative short?term gain that might be realised from such a proposed mine versus the long-term legacy issues commonly associated with land use activities that are incompatible with biodiversity and attendant water and food security. WWF-SA thus rejects the amendments proposed by Eco Partners on behalf of Atha and reiterates our objection to the proposed mine. We request this letter be included in its entirety along with all relevant documentation as our initial objection to this mining right application. Yours sincerely Anus Burns Manager: WWF-SA Grasslands Programme Box 21106, Newcastle. 2940 Tel: +27 034 318 6158 Mobile: +27 084 400 1234 Fax: +27 086 517 4073 Skype: decarabia1 Email: WI Web: WWF fora living planet? I 0 7 Nirirmrui Remurces OF SOUTH ?rwaxe FEB. Wiihanii. 1035. Tel: (013?. {556 Fax {313'} 655 F?rcumw Bu?ding Bcaha Paul Kruger Sta-2e! 1335 From: Directorate: Mineral Reglslatacm Mpumaianga Regmn Enquries: LUCKY NO. Subd?mectoarte: Minerai Laws. 85*? {3 {?559 The Directors ??aiha?Afr?ca veniwes (My) Lid Box 1569 SAREDTQN 2157 Eax: (81?)?84 Gentleme??adies MENERAL 4523-333 RESOURCES AC ZS 233 2092}: 82 ?33 HT, OF ?2'33 3839 HE GETZISHT ?5238 HR PORTEON 2 1 EXTENT 335 FQRM VAN BER HT, VERGENEA 9? HT, WAALHGEK 87 HT, 'i THE REMXAENWG {3 FARE 335 ANS 94.03. This serves in you iuat your abovementioned applicatian for a mining right to mine f0? 60a? in respec? of the abovementioned pmpef?y has been granted in Terms of Section 23(3) of {he abovememionad Act. The Regionai Of?ce will meguare the ?naf copies of the right is be s?gned. 2, ma?a $33? $8 Reg?onal Manager ap?pmve 52hr: refevan?? Environmentai Managemem Programme arid Sign ?ne right. P0 Fu??ner r1028 ihaf in terms of Sec?on 23(5) of the Act, the cemes Enio effect ?he da?e on wh?ch Enviromzzents? Ma?agjamen? fir! ll Prograr?rzme is approved. in terms or section 25(2) mining activities; must commence witriie orie year or? the effective date. iigiat or the afore?going. you are requested io: 4.1. Ensure that all outstanding matters regarding your application are finalised and that relevant documents are submitted to the Regional Of?ce no Eater than 30 days prior to the date mentioned in paragraph 2 above, which outstanding matters inoiade the submission of: a. Financiai provisiori provided before execution to, the of your authorised representative who Sign the right, (3, the particuiars or the public rtO?EE?il?y, before whom the ri or must be signed, six copies of the final mining work programme, e. diagram prepared by a surveyor {5 {eix} originaie} in accordance with the requirements of the Mining Titiee Registratiori Act and which shall indicate the following: i, the north point; ii. the scaie to which the plan has been drawn; the name, number registration division and portion the farm or terms on which the reievant area is situated; iv. the shape of the relevant are in reiation to the farm boundaries and co-ordimatee points; v. the regiori in which the reievarit farm ie situated and; vi. be certified, approved sigmari and dated by a e. professiorial land surveyor: the Director Genera othemise iodioatee. Three copies otthe oial Labour Pi" I) 4.2 make arrangements for the Poetic notary, authorized of your company arid a witness to be eraser it attend the signing of tire mieing right once the aforesaid ootetanding rriattei'e are verified and an execution date has been ?rteiizea by taie e. Note further that in terms or? sectiori the aigoedr?execeted mining right meet iodged for registration at the i?utir?serai and titiee Registration otr'ioe, Edeioria, within 39 days; as from the date of approval of the reievarit eeviroementai mariagerrierit programme. are l, E3, The feilowing shalt also be noted: The granting shalt exclude any areas that constitutes wetlands. (ii) Surface mining or retatee? activity. as wetl as erectiona?ir?: teilation of suaface infrastructure shall be prohibited from taking place in any area that constitute wetiands or is deemed to be a sens?tive environment. The appticaet shall formulate proper mitigation measures relative to the area consuitation with all the other stakehoi ersi?authorities that administer matters affecting the environment at Natiosal and Provincial (Mpumaianga) teve-i. (iv) A proper plan/map shail be submitted with a dear depiction of such exclusions as iodicated on it) above. MB: The abovementtoned conditions shatl be fulfilled to the satisfaction of the Bepartment before the right can be considered further for notartal exeouscs. ??aitst?e to comply may resuit to the withdrawai, suspension er oaoceiiatioo of the right in question. .- manta" ?a?OLlsS talli?fUtty 1? ti :Hhc. "its 1mg; 3R GENERAL DEPARTMENT OF WHNERAL 15.3.: ?at .l {3153. E: \143?vf jaw-J Aubrey Tshivhandekano Regional Manager: Mpumalanga Department of Minerai Resources eMalahleni 1035 By email: cc: Lydia Mapopa Department of Minerai Resources: Mpumalanga By email: iydia.ii?aohoohag?onsgeovea Your ref: MP 30/5/1/2/2/10069 MR Our ref: Date: 23 February 2015 URGENT Dear Mr 'i'shivhandeka no RIGHT MP BOISIIXZJZIEOOSS GRANTENG OF REGHT TO ATHA-AFRICA VENTURES (PTY) LTD iN RESPECT OF PROPERTEES EN THE MABOLA PROTECTED The Centre for Environmental Rights is a non-profit organisation and iaw clinic established to advance environmental rights in South Africa. One of our areas of work, which we regard as central to realisation of section 24 of the Constitution, is the protection and defence of protected areas and areas of critical biodiversity and hydrological vaiue and sensitivity. The Centre also works ciosely with numerous other civii society organisations concerned with ensuring transparency, accountability and environmental compliance in the mining sector. This includes WWF South Africa and BirdLife South Africa who have worked for the protection otthe broader grasslands area in Mpumaianga, KwaZulu-Natal and Free State tor many years, as weil as the Mining and Environmental Justice Community Network for South Africa. For these reasons, we supported the declaration of the Mabola Protected Environment under the National Environmentai Management: Protected Areas Act, 2003 (NEMPAA) by the Mpumalanga MEC in January 2014. it appears from recent media reports and other sources that, since that declaration, the Department of Mineral Resources has granted a mining right to Atha-Ar?rica Ventures {Pty) (MW) in respect of a mining area that faiis within the Manola Protected Environment. Piease. as a matter of ureencv, provide us with any letter from your office to the AAV con?rming that a mining right has been granted to it in terms of section 23 of the Minerai and Petroieum Resources Beveioement Act, 2002 in respect of oroperties in the Mabola Protected Environment. it further appears that AAV intends pursuing the exercise of those rights despite the provisions of section 48 of NEMPAA. Section of NEMPAA provides, in reievant part, as toilows: I \u Despite other iegisiotion, no person may conduct or reinted activities in a protected environment without the written consent of the Minister {of Environmentoi Affairs] and the Cabinet member responsible for mineral and energy 5. Has the DMR requested the written consent envisaged in this section from thexixilinister of Environmental Affairs and the Minister of Mineral Resources? If so, we urgently need copies ofthis reqdest and any responses from the Minister of Environmental Affairs, the Minister of Mineral Resources and/or the Department of Enirironrnental Affairs. 6. lfthe DMR still intends to make such request ofthe Ministers, a reasonable public participation process is required in terms of the Promotion of Administrative Justice Act, 2000, which Act sets out the obligations relating to procedurai fairness in administrative decision-making. Should the Ministers have been requested to consent to the undertaking of mining or related activities in the Mabola Protected Environment, kindly advise us ofthe public participation process underway. Kindly let us have your response to this letter by no later than 25 February 2015. Yours sincerely EENTRE FOR ENWRONMENTAE. RIGHTS tetherine Horsfieid Attorney Programme Head: Mining Ditect email: adv?; lb . mm? . uremia? ?r fit? s, 12in so? Marth?n theart From: Marth?n Theart Sent: 02 March 2015 01:25 PM To: ?Praveer Tripathi? Cc: 'EcoPartners' Subject: Proposed Yzermyn Underground Coal Mine Dear Mr Trioatni i refer to the email from Ms Eaartjes to me below. We have fbeen trying to access docoments reievant to Atita?Afrlca Ventures? (Pty) (AAV) m?ning right application relating to its proposed YZermyn project near Wakkerstroom in Mpumaianga. As We were under the impression that Eeoi?artners was environmental consultant in the mining ?ght application. these documents were requested from EcoPartners. ivis Baartjes? email below is a reply! to my request. in a newspaper articie, published in the Mali and Guardian on 30 January 201:3, it was stated that mining right apolicatioe tor the proposed Yzermyn project was granted. We have requested "a copy of a letter from the Department of Mineral Resources to AAV notifying AAV that the right was granted? from the SMR, out they have not answered our request. it it is correct that this mining right has been granted, would you nieese seed roe a copy of the tetter from the DIVER to AAV confirming this? We require this as a matter of some urgency. We also require a whole range of forti'aer documentation, which we will formai?y request from inf-W at a later stage. \nie await your reoiy ?j?ours sincerely Marthan Thear?t Attorney Centre for Environmental Rights NPC A non-profit company with registration number 2699/020736/08, 980 No. 936032226, NPO No. 075-863; VAT No. 4?"?0268653 and a Law Clinic registered with the Law Society of the {ape of Good Hope 2"d Floor, Springtime Studios, 1 Scott Road, Observatory 7925, Cape Town, South Africa Tel 821 447 1647 086 730 9898 Etheartg?gcerorgla r? so- .. any .3 rugg?ln .1 Newsflash: The Centre runs an Environmental Rights Clinic on the first Friday of every month. See it you; your community or your organisation qualify for a free Clinic consultation and book an appointment at Erom: Baartjes Sent: 27 February 2015 {38:33 PM to: Marmara Theart 1.- A ?l Cc: 'Praveer'i'ripathi' Subject: RE: You have been registered at Dear Marthan These documents are not uploaded on the EcoPartners website, as the information you request was submitted more than two years ago to the DMR after a public participation process that was done by WSP. The information that is available on our website is related to the updated information requested by DEA in relation to listed activities triggered under NEMA. Please note that it was still under the 2010 regs, as it was an update of information requested and the continuation of an application process. We request that you to contact the applicant directly for am}r other information, Mr PraveerTripat'ni on 011-784 1885 or on his emaii, copied here. Thank you {horiuine Energies Managing Director EcoPartrrers tel: 011 ?31 2251 Tel: 084 5155 84$ Fax: 685 628 506$ #7 Marth?n Theart t?rom: Mar?than Theart Sent: 03 March 2015 02:33 PM To: 'Aubrey Tshiv?nandekano? tic: 'Seapei Sekg etho'; Juanita du Plessis (iuanitaduPlessis@drnr.gov.za) Subject: Mining right application: MP 30/5/1/2/2/10069 MR Attachments: 150223 Letter to DMR re Mabola Protected Dear Mr Tshivhandekano On 23 February 2015, we sent you a letter requesting that you provide us ?with any letter from your office to [Athaw Africa Ventures {Pty} Ltd] con?rming that a mining right has been granted to it in terms of Section 23 of the Mineral and Petroleum Resources Development Act, 2002 in respect of properties in the Mabola Protected Environment? by no later than the close of business on 25 February 2015. We have not received a reply from you. A copy of this letter is attached for your ease of reference. "lease, as a matter of urgency, provide us with a copy of this letter. Marth?n Theart Attorney Centre for Environmental Rights NPC A non-orofit company with registration number 2009/020736/08, 980 No. 930032226, NPO No. 075-863; VAT No. 4??0260653 and a Law Clinic registered with the Law Society?ofthe Cape of Good Hope 2?d Floor, Springtime Studios, 1 Scott Road, Observatory 7925,. Cape Town, South Africa Tel 021 447 1647 Fax 085 730 9098 mtheartherorgza gt}; t;nyittfinmental ttigitts "ornrs?tn'ien ~759tgitts 25?; 5:15., .- - 33:42: News?ash: The Centre runs an Environmental Rights Clinic on the ?rst Friday of every month. See if you, your community or your organisation quaiify :or a free Ciinic consultation and book an appointment at Marth?n Theart From: Melissa Fourie Sent: February 12:03 PM To: Catherine Horstield; Marth?n Theart; Coriaan De Villiers Subiect: Fwd: Proposed Underground Coal Mine in the Mabola Protected Envi -- Original message From: Milicent Solomons Datez26/0212015 11:50 To: Wilma Lutsch Cc: Melissa Fourie ,Fiona Grimett ,Humbu Matumo ,Ishaam Abader ,Jones Muleso Kharika .Karl Naude .Sabelo Malaza ,Pumeza Skepe ,Skumsa Mancotywa .Siboniso Mbense Subject: Re: Proposed Yzermyn Underground Coal Mine in the Mahala Protected Envi Dear Wilma Your email below refers; please note that the queries related to the Protected Areas Act and authorisations that need to be obtained from the Minister to mine in the protected environment. We do not deal with these matters and it should be directed to the D: Protected Areas for a response. We currently have one in-process application for environmental authorisation and the amended Final was only received in February 2015. The decision has not yet been made and is only due in approx 100 days. This query relates to an already obtained Mining Permit. Kind regards Millicent This message and any attachments transmitted with it are intended solely r?r the addressee{s) and may be legally privileged andror confidential. if you have received this message in error please destroy it and notify the sender. Any unauthorized usage. disclosure, alteration or dissemination is prohibited. The Department of Environmental Affairs accepts no responsibility for any loss whether it be direct, indirect or consequential. arising from information made available and actions resulting therefrom. The views and opinions expressed in this e-mail message may not necessarily be those of Management. Wilma Lutsch 0225/15 4:08 PM Dear Millicent The attached letter was received from Mellissa Fourie, Executive Director of the Centre for Environmental Rights. requesting a response to a number of questions regarding the granting of a mining right to Aline-Attica Ventures in respect of a mining area that tells within the Mahola Protected Environment. After investigations in this regard. it became apparent that your section dealt with this matter at a previous occasion, and therefore a friendly request to respond as a matter of urgency to his Fourie, as she has to lodge an appeal against the granting of a mining right. Please also find a resoonse to a media query in this regard for your information. Kind regards Wilma Lutsch Director: Biodiversity Conservation Departmental Environmental Adair?) Tel 012 3998827 Pin Cell: 082 657 2322 E?mail: wimscmaenvirmment.qovza ISO Marth?n Yheaa?t ham: Seapei Sekge?ihm Sent: ?33 Marrh EGTS ("3:31:24 53M To: Mar?thz??n Them?: Subject: Message: from KM 8138-3 Attachments: 31 50307-31 51 Utipdf From: Lucky Mugagacieli Sent: Tuasday, March 03, 2015 3:22 PM To: Seapei Sekgetho; Lydia Maphopha; Ntsheie Phasha Subject: FW: Message from Emm: scan?i?itemoza Sent: March 2015 63:11 PM To: Lucky Mugagadeii Subject: Mesgage from ES-ruail Disclaimm?: The info?mation confaiimd in this uommunica?i?im is con?dential and may be iegal pt?ivi?eged. 11 is inl?mded $0165}: far the {we the individual or entity to Wham it is midmgsed and others authorised recaivad it. if?yma are not the: hate-mad meipiam you are lzemh}; nati?ed that any disclasum copying, digtr?bution or taking amen i1? reiizmce of cv?ients this; in?wmatian is ?ricliy pa?uhihiigd and may be unlawful. The views. 2mg? up?niuns sxprexgad in this; e-mait am those Ui?ihe Samar unicgs chart}; slamd as {hem of DamnQO of k?i?ncmi Resuumes. Department af?Mineml Resources; magma no Eiab?iitj; whammc'vcr any 103:; or incurred or suffered arising {mm the ut?ihis E-mail 0r its {Japanan of M?neral Resourcea (102:: mu: warmm this integrity ei?this c-ma?] mr that it is free Manners. viruss?ass interceptiwn wr in?ert?erenae. x. :05; Ii, (SK - ?31. .4: m?nemi {Wegmm?s ?Ii?li-f?. if? . .31: R?esa?urcm - OF 5591,12 - E?erzate ?L?f?ag 272%) Wam'ank ?333 'fa-zl: 6536 mas? Fm {$131 GEBE Lasg?iaimg Car 8mm 93a! Krugm ?lmet 103$ Hem: Q?wmorata Mmemi ngu?atium i??gua??aianga Haggai: grammes: N0 $ubdiractoar?a: Mingus! Lgaws The Diracims Mina?Mme] vemweg {Pty} F3 Box 3589 215?? Fax: (m1; ?38a 7?46? Gem?i?emenfiadies IKPPLECQTEGN FOR ?1 WHNEMG REGHT EN TERMS OF 22 GP TEMEE A?f} RESQURCEQS SEVELGPMENT MIST, Z??ii ?451.33? 23 323%" 23.392}: BLOEMHQF 92 GGEDGEVOWSEN 95 KROMHOEK 93 HT, PORWGN 1 NAUWQEVONBEN 199 USYZICHT 198 POREON 2 REMAENWG VAN BER WALTSPOORT VERGWM E31 WAALHOEK 8? 5-H, PORTEON ANS YZERMYN Ag??i} g4 WAKKERSTROOM. This garveg to inform y?u that yaw? abawsmem?omd appi?ca?m a minimg right :0 mine f0? Caai in mama: of the abovemen?anad prepa?y has mam: gmnted Eh fem?zs 0f Seci?an {3f i316: abmameniianed Ac?? Thea Regienai Of?se prepare me ?na? cages; of im right a; 338 Ersigmc?. 2. Take mm {half the Reg?anai Manag?r Wm apprme raievmi Emimnmar?ai Mamgemem and Sigr?: the :11 3? 23mm? maize that Eerms Sectim mgr}; the 2% mimer r?gm Gamea Ema effect am 2% data-r: {m whic?": ihe Ems'imnmenija? is; ammwd ln {arms of sealer: {in mining acllvilia??; mug: wmmence w?th?m we year a? ?the e?ect?ve dale. 4? EH light of the. afaregmng, yau are: requeated its: 125.1 Engum m: all mailefs regarding; 3mm application ?nalised ems} ma: relevant {iammen?ls are Submi?ed to ihe Regimai Of?ce n0 later than 30 days prior to the date mentioned in paragth 2 above, which matters include the submission of: a? Financial pm?a?igion provided befme executiom 31 {he par?culars of yaw? autho?sed :?epra?senlatlve who will sign the right, the: pa?lculal?s of maze public notary. befmre Wham ma? right must be Signed, d. six copies cf the final mi?lng werk a. diagram prepared by a surveym {8 Wigwam} 2' scardance with fhe requiremenlg 0f the: Mining Titles Registratmn Act and which Shall? mama: rm fall-swim: a; the mm; ii. the scale {a that pig-3r: been dran ?le name, number registralson diviaian a psr?im a? the farm or farm-s; an whim ?aha :alaavm?i mega is situated; iv, iha 3519499 {Ha relav?am are lz'l aha}. fez-{m mummies and Ci?w?l?di?al??f? minim v? i? a l?eg?om which the: ralmaml lam is allualai?? a?nd; val be certi?ed: appmve? and Gazad by me land wless the {Eyeglass Samara: th?lei?wise lnz??cales. {We swag.sz of $395533 arid iabsur :Dlarz. 42 Please r?nake arrangemems far lime 53mm: hazary, ammer f?pwgentame yew mpany anti wellness; to ba prawn: and attend the aignimg} ml?ing f?gl? {mm ?lm afaresald Quiglamdmg matters am vefif?ad and am execut?cn data hm been f?mlimd by m; O??ca :35. Nata farmer t?a: team as? Saclim the sigmaiimxemsf mim?g light mass? 35:: loggec?? fer at @eim?eum lilies Regg?gira?m m??wg within clays; as frm?? dale a? awmvz?l zeima?t anv?g?anmenmi managemem (?53 TM mimmng ssha?? @530 be mated: 1 W. cars fmiz??m ?9 (TV) granting ahali gxmude any arean that cmatitutes wefiamdg. Surface mining {3r ac?viiy, as wet? as erao?m?inmaliatfan 02? surface infrastructura Shelf be pmhibited from taking piace in any area the? constituta we?anc?g or $3 deam??d to E39 a sensitive amimnman: ??ne app??cant shall farmuiate proper mitiga?en measures re!at?ve to the with the stakeholdersiauthsr??es that administer matters affecting th area in consulta?om all other environment at Naiional and vaincial (Mpuma?anga) lava. A proper {21amme Shall be submi?ed with a clear dap?ction of such excius?ms as indicated an (E) above. NB: The? abevemen?oned aondit?ans ahai? be ful?lled is the satisfaction a? ma Depazfmem before {he ?ght can be cans?dered fume? far notariai execu?sn. Fai?me compi?y may resuii we v-J?thdfawal Suapamim it}? the in gamma. ?sung; ?y .2 53% msaau??mmamm gx?gcnm%ngQRAL mg?g:r:a s) (S Marilyn Budow I rom: Anjuli Leila Maistry Sent: Monday, September 07, 2015 9:54 AM To: Marilyn Budow Subject: gilbert From: Mohammed Hassim Sent: 27 August 2015 08:09 AM To: Anjuii Leila Maistry Cc: Karl Slothnielsen Subject: Re: Concerns over fraudulent rejections ?Hello Anjuii A "l I have reported back to the Chairperson of SCRA about the meaningful discussions we had at the meeting on Monday. What was of particular concern to SCRA was the mention that or other persons in the department who could possibly be fraudulently endorsing decisions on behalf of SCRA. Could you kindly inform us in which office was this observed so that SCRA could best try to remedy the situation? Regards Muhammad Hassim (Adv) Member: SCRA 0837864635 -. 39.13:? 513-.) .- . . .-.., 3-H. Dear Sirs We note that we have not had a response to this email. We have attached the initial correspondence addressed to you for your ease of reference. ?2 mm idem. 8116/2015 cm a at martinis indicators tresttional Dpinion a: we? Mine rights moratorium to be titted February 8 2011 at 05:50pm Comment on this story The six-month moratorium on new prospecting applications would be lifted next month in all provinces but Mpumalanga, Mineral Resources Minister Susan Shabangu said on Tuesday. The moratorium was imposed at the beginnln of September last year to allow her department to conduct a full audit of all mining and prospecting licences granted since 2004. ?We are not going to lift Mpumalanga.? she told a media briefing at an African mining conference in Cape Town. "We've got challenges bigger than what We expected. so we will lift eight provinces. and Mpumalanga will for two to three months before we lift the moratorium." Susan Shabangu will head a brand-new department. within the presidency. dedicated to women. Photo: Leon Nicholas The biggest challenge in Mpumalanga was environmental matters. "issues of ecology". "You find sensitive areas where rights have been granted.? she said. ?We intend to address that matter. hence we are not going to lift the moratorium. so as to make sure that we respond to the challenges of nature. ?Unfortunately rights were granted. but we'll have to address those issues." She said her department was working closely with the department of environmental affairs. ?The minister of environment tiaand 318. we are big buddies, so there's no way we can fight," she said. The departments were discussing the possibility of an integrated licensing system. in which both departments. and water affairs. worked together. The imposition of the moratorium followed growing concern over allocations under the Mineral and Petroleum Resources Development Act (NI Shaoangu said the department discovered during the audit that a number of applications had been granted even though the companies concerned were not fully compliant. They were mining without environmental plans. or on the basis of incomplete applications. A number had been served with notices that they would have to shut down. She said that where the department had discovered gross negligence on the part of its of?cials in granting licenccs. it had taken disciplinary action. it had suspended some employees who might have been involved in tampering with information as the audit was being conducted. At the time the moratorium was imposed, there was a backtog of 26.000 applications. The backlog had been reduced. but she would not say by how much. Mineral resources director general Sandile Nogxina said the moratorium imposed on September 1 would expire on March 1. rloweverthe minister Would decide on the actual date for lifting it. which would be ?thereabouts?. Earlier. addressing the conference. Shabangu totd delegates that of the 26.000 applications. cases of double granting or rights discovered to date amounted to 122. She said the audit revealed that despite a huge number of prospecting rights issued since the promulgation oftne MPRDA. there had not been a 'reciprocat exploration activity? in the country. "It appears that there is another wave of rights hoarding which may compel me to consider the ?use-it or iose-it? provision imbued in legislation." she said. To this end, over 890 notices in terms of the MPRDA's sections 47 - which allows her to give notice of suspension of rights - and 93 orders for suspension of operations had been issued. Sapa i asicicrship Mine rights moratorium to be titted - Business News IOL Business Fina? stat Toois Erica: Vimle Most Commented - 'Critical sectors are in crisis' - Mankana's traders face grim times - Hiking rates on current contracts 'il - Hout Bay's fishmeal factory faces clo I Donald Trump's legacy of luxury x- Era-? . .31 Mining industry Can the mining industry he saved? '5 Yes, but only with drastic action now 3 No. it?s too far gone I (a ?3 i) I. F. tracing Join as Pictures 1hit, Pics: Deep Fried creative flair August'M 2015 i Front: T020117847467 28/04/2013 07:41 #384 eels/ii mineral resources. Department: Mineral Resources REPUBLBC OF SOUTH AFRICA Private Bag X7279. Witbank, 1035. Tel: 013.653 0500, Fax 013 690 3288 Province Building. Botha Avenue Paul Kruger Street. Witbank, 1035 From: Directorate: Mineral Regulation: Mpumalanga Flegion Enquiries: du Piossis Ref: MP 30!5!1/1/2/10069 MR Subdia'ectorate: Mineral Laws Raises-red Me? The Directors Atha Africa Ventures (Pty) Limited Box 1569 SANDTON 2157 Fax No. 611 784 7467 ?ttentfon: Morgan? Munsemy GentlemenILadies ACCEPTANCE OF AN FOR A MENENG REGHT 1N TERMS OF SECTEDN 22 OF THE MENERAL AND PETROLEUM RESOURCES DEVELOPMENT ACT, 2002 (M37 23 OF 2002): THE FARMS BLOEMHOF 92 HT, GOEDGEVONDEN 35 HT, XHOMHOEK 93 HT, PORTION 1 OF THE FARM NAUWGEVDNDEN 110 HT, PAARDEKOP 109 HT, 183 HT, VAN 9E8 WALTSPOORT HF, VSRGENEA 91 HT, 3? HT, VZERMYN 96 HT AND ZOETFONTEEN 94 HT, MAGISTEHML 0F WAKKERSERGOM. t. This is i0 inform you met your abovementioned application for the mining of Coal in terms of Section 22 of the Mineral and Petroleum Resources DeveIOpment Act, 2002 {Act 28 of 2002) has been accepted. 2. in terms of Section 22(4) of the MPRDA you are therefore required to: submit six (8) copies of a scoping report on or beiore May 2913, P.00ii003 (S?l ?5??ng From: 26/04l2013 07:41 consult with interested and affected parties and submit six (6) copies of the environmental management programme which includes the environ mental impact assessment report in terms of section 39 of the Act on or before October 2013; which programme must be compiled with' the input of the public, and must include a record as to the extent that the public participation informed the oasetine environment and the potential impact assessment. notify in writing and consult with the landowner or iawiul occupier, the surrounding community members, any other affected party and submit the result of such consultation to this of?ce on or before 2?52 June 2013. . You are further, in terms of Sections 29 and 39(5) of the MPRD Act, directed to compile the Environmental Management Programme in accordance with the standard directive attached hereto as Annexure A. . You are further requested in terms of section 17(4) of the Act to give effect to the object referred to in section 2(d) of the Act. in this regard you are required to submit by no later than age May 2013, the following documents: 4.1. duly signed shareholders agreements; 4.2. share certificates and shareh older?s registers; 4.3. articles and memorandum of association ot the company; 4.4. details relating to tunding {ail relevant agreements); and 4.5. any other agreement or documents reiating to the agreement. . Kindly take note that our system couid oniy print the application form which you have submitted on line. Therefore you are herewith requested to submit proof that the documents were submitted on tine and you have to submit hard copies of the following documents within 14 days from the date of this letter: - Details of the land or area (the regutation 2.2 plan): Two copies of the Mining Work Programme Proof of the, financial and technicai competence; Detailed financing plan as contemplated in regulation ?l?iigt; Provide a iist of existing rights which are heid by you Two copies oi the Social and Labour Plan; A certified copy of your valid Prospecting Right; A certified copy of the certi?cate to commence business; and A copy of Resolution, it acting in a representative capacity. (D Q. a? co VWUWV 'Hrd' #384 1S1. From: 26/04i2013 07:42 #384 (SCI Further note that failure to submit the documents as requested and failure to adhere to the iimeframes as stipuiated above amounts to non-compliance with the provision of the Act and will therefore Head to your application being processed ior refusal without luriher natifieation to you. Yours faithfully REGIONAL MPUMALANGA DATE: as April 2013 Private Bag X7279, Witbank, 1035. Tel: (013) 653 0500, Fax (013) 690 3288 Province Building, Bethe Avenue 8: Paul Kruger Street, Witbank, 1035 Enquiries: Mr. MC. Montsha Ref No: MP 30/5/1/2/31?2/1/10069 EM Sub-directorate: Mine Environmental Management The Directors Atha-Africa Ventures (Pty) [3.0 Box 1569 SANDTON 2157 Dear Sir/ Madam DERECTWE 3N TERMS OF SECTION 29 AND 39(5) OF THE MINERAL AND . r. esteem! Irv! from rec: oe RESPECT ACTWITIES TO BE CONDUCTED ON THE FARMS BLOEMHOF 92 HT, GOEDGEVONDEN 95 HT, KROMHOEK 93 HT PORTEON OF THE FARM NAUWGEVONQEN TIGHT, THE FARMS PMRDEKOP 1&9 HT, 108 HT, PORTION 2 AND THE EXTENT OF THE FARM VAN BER WALTSPOORT HT, THE FARM 91 HT, 1 AND THE REMAINTNG EXTENT OF THE FARM YZERMYN 95 HT ATTD THE FARM 34 HT, SITUATED WETHIN THE MAGESTERIAL BESTRECT 0F Your EMF submitted in respect of the above mentioned application cannot be considered compliant with the approval criteria as set out in Section 39(4)a ot the Act, in that:? a) This office does not support this application in its current form considering the preferred layout for the proposed infrastructure, in that the preferred location is tocated within the sensitive environment. It is the View of this office that, the proposed project will result in an unacceptable pollution, ecological degradation or damage to the environment; even though there are proposed mitigating measures. It is therefore recommended that you reassess the surface layout design in order to reposition the proposed infrastructure to an environment is not sensitive. Furthermore, upon the revision of the surface layout plan, an environmental impact assessment of the alternative location of the layout plan should be done. b) The environmental emergencies and remediation plan provided in the EMP cannot be considered acceptable in that tt does not provide procedures for the remediation of the environmental related emergencies that might arise during the operation otthe rnine as a result of the proposed mining activities. 0) f) g) The rehabilitation plan provided in the EMP cannot be considered in its current form in that, it is generic and does not focus on the different components at the mine. As such you are directed to provide a rehabilitation plan with detailed methods to decommission each mining component and proposed mitigation or management strategy to avoid, minimize and manage residual or latent impacts. The aforesaid plan must also describe the final and future landuse of which must conform to the surrounding areas. The does not provide the cost for capacity to rehabilitate and manage the negative impacts on the environment. As such you are directed to the cost for capacity to rehabilitate and manage the negative impacts on the environment; such costs should be cross referenced with the proposed mitigation measures. Page 477 of the EMP indicate that the company wiil establish. implement and maintain a procedure to monitor, measure. on a regular basis. the key characteristics of the operation that may have significant environmentai impacts, however the EMP does not provide the list of aspects that will be monitored, frequency as wait as the plan which shows thermonitoring points. 'b 11;? ~31The EiVil5 indicate that post closure the workings will decent, however it does not provide measures to manage the decent. Your attention is also drawn to the attached comments from DWA. You are directed to address the comments and the response must be communicated with DWA, Durban office. in View of the foregoing. you are herewith in terms of the provisions of Sections 29 and 39 (5) of Act (Act No.28 of 2002) directed to address the above in a form of a revised the EMP and submit 2 revised on or before C/?ailiiarch 2M4. Should you require any further clarity regarding the above, do not hesitate to contact the above-mentioned person at the contact detaiis provided. Yours faithfuiiy .15 MANAGER MPUMALA omission oars: truf- i Id ?lam! teem? I 1' 3) 8m Fioor, Sinosteei Plaza. 159 Rivonia (be imtta weetce enemies Road,sandmn,2144 i .11 . . Tel: +27 11 184?1885 Fax: +27 11 ?84- 21457 Email:moreammunsamv??athaqroup .in Registration No. 2004/020745/07 -.- . . . THE HONOURABLE MEMBER OF THE EXECUTIVE COUNCEL: MRS PHOSA (MPL) MPUMALANGA PRGVINCIAL GOVERNMENT: DEPARTMENT DE ECONOMIC DEVELOPMENT, ENVIRONMENT and TOURISM PRIVATE BAG X11215 NELSPRUIT 1200 PER HAND DELIVERY 21 MAY 2014 PER E-MAEL: i535 moe?gg?g MR Dear Honourabie MEC, RE: REQUEST TD PROVIDE ATHA-AFRECA VENTURES WITH GUIDANCE AND ENFORMATEDN IN RESPECT OF ANY CONDITIONS TO BE INCLUDED EN ENVIRONMENTAL MANAGEMENT PROGRAMME, TO BE APPROVED BY THE DIVER, IN ORDER TO ENSURE THE PROTECTION OF THE ENVERONMENT AND THE BEODWERSITY THE DECLARED MABOLA AND EXTENDED KWAMANLANGAMPISI PROTECTED WETHEN WHECH AAV HAS APPLEED FOR A MENING REGHT Your letter dated the 315t of March 2014 has reference. As per our ongoing correspondence and interaction with your Office {Office ofthe MEC) and the moumalanga Department of Economic Development, Environment and Tourism in reSpect ofthis matter, you are well aware that Atha?Africa Ventures submitted a Mining Right Application ("the application?) to the relevant Regional Manager of the Department of Mineral Resources The Mining Right Application was submitted on 19th March 2013 in respect of 3 Mining Right Area which partially fails within the Declared Maboia and expanded Kwamandlangampisi Protected Envirohments, as gazetted on the 22nd ofianuary 2014 in Government Gazette number 2251, Notices 21 and 22 of 2014 (?the Deciarations"). in your Setters dated 24 December 2013 and 31 ianuary 2014 you confirmed that the Earm Yzermyn 95 HT, which also faiis within the reievant Mining Area, was excluded from the abovementioned Declared Protected Areas, and furthermore, that subject to the Mining Right being granted by the DMR, there will not necessariiy be an absolute prohibition of mining in the relevant declared areas. .- Direct-o'rs: Atha? Sgt?ha" VAtha* Munsamy Indian) I. 8?n Floor, Sinosteel iilaza, 15E) Rivonia Road, Morningside, Sandto n, 2144 Tel: 11 784-1885 Fax: +27 11 784~ 7467 ED it a. 3.1 $9 AT u?iie'?i??t Registration No. 2004/020746/07 - .. .. r, However, if Mining Right Application is successful, mining activities in the region will be subject to strict/stringent environmental conditions. Honourable MEC, you also concluded that should Mining Right be granted, your Office and the MDED ET ?will work very closely with AAV to ensure a balance towards preserving the environment, ensuring reasonable maximum profits and contributing to the socio-ecanom of the a?ected communities through encouraging Social and Labour Plan which is more than welcomed, fo_r working together we can do more?. Cognisant of the above-mentioned obligation on AAV to ensure the protection ofthe environment and the biodiversity located within the proposed Mining Right Area, which are also located within the declared Mabola and extended Kwamanlangampisi Protected Environments, AAV is adamant to use its best endeavours to fulfil its obligation to protect the environment and the biodiversity as an ethical and responsible mining company. As a proactive, cautionary approach, AAV has opted to include any specific environmental and or specific mitigation conditions or guidelines of the MDEDET in the Environmental Management Programme, as part ofthe Mining Right Application, to be approved by the DMR. It is our sincere beiief thatthe inciusion of any specific conditions which MDEDET may impose on mining activities in the region, even though such environmental conditions will be strict/stringent, must also be enshrined in the Environmental Management Programme, approved under the Mining Right Application. AAV has been interacting with the DMR on a continuous basis regarding any clarification in respect of the Mining Right Application as well as the submission of any additional information which the DMR requested in furtherance ofthe Regional Manager?s assessment and finalisation of a recommendation to the National Deputy Director General: Minerai Regulation and Administration {Northern Regions). In order to amplify goodwill to assist the MDEDET in its environmental and biodiversity conservation plans in Mpumalanga, AAV is desirous to also include any specific environmental and or specific mitigation conditions or guidelines of the MDEDET in the final Environmental Management Programme, to be approved by the DMR. - Directors?t lVAtha* i Munsamy indian] 8m Floor, Sinosteel Plaza, 159 :Evonia Road, Morningside, Sandton, 2.144 Tel: +27 11 75444885 Fax: +27 11 784? 7487 VENTEFRES Med Registration No. 2004/020746/light ofthe above-mentioned, AAV herewith requests the honourable MEC to provide us with direction and or guidance on the most appropriate channel, in MDEDET, to follow in order to obtain clarification on any specific environmental and or specific mitigation conditions or guidelines of the MDEDET, which AAV can include in the final Environmental Management Programme, to be approved by the DMR. We sincerely believe that the requested information will be of great assistance to the DEVI R, in its final review and adjudication ofthe Mining Right Application, since the relevant information will provide the DMR with an opportunity to make an informed decision based on all relevant facts. We trust that you will find the above in order and eagerly await your response. Kindly acknowledge receipt of this letter. Yours Faithfully, Munsamy Director VENTURES (PTY) LTD. CC: The Regional Manager ?Mpumalanga Department of Mineral Resources:- Mr A Tshivhandekano CC: The Deputy Director General: Mineral Regulation: Mr Joel Raphela:- {joeLRaphelat?dmrveovaa) Bil-that" Ill/?Atha?l?wl Munsamy l* Indian) 55 Written Notifica?ion Letter: 735113 filial-d Rikki, ?mm. 1195 4251 2251 [684} 5155 M13 9 PM: {my 6?12? UA?nd sent-11mm it; ??gmmber 293:3 mar Eiak?h?ldar E: Proposag ?fzermvn Underqraund Coal Mim- ngect gRaf: 1am . Hmrawan nauzscatwn my; human}. 1 I ?fhea ma?aaimam a: Erz?rm?smasnwi magma-3 aha. #3 i212}! (want, at wag s; Jam] 3r; mm and zanaagizasd 3:31 a?t?it: mmrmaiwn tn? 5363:9529. a ?East??mn. we ?naizigi?mjzanr 9: Elias:va i2: is: 12% gamissc; sez?menia f'ei?mb?zz? was?: theragmzj 'mm - Hair} 4 I 21:- 321 $543; 3:2;75143 - Era lam}: Ree-3m pmwsama.? gm?! adaizwr-ai @pac??r?m gamma mamas.le ?izzuywi?sj lm?t?act 3% ".336?le $9.321'2: 33-43, ?355? pt'ii*ff, ?333.35. or--.. 1.11.1 I - .v Fr 5: r-?z I .-- us. .- run: 2?7 Ought-r 2-311. . Iran-1 - Ir .. .-.- 91"? 1"?1w. - I -. 3'rim: 21:1; LA Realms! access (a Hm Svcuau mn'l' 1' I.-.I- 541233: Ear. iv: at qu?syi/E?IEg, ..I .vl 5":th um mm unquauns .. m. a Mal-1.1 a; ,Lu" rm- [Jahumunb I'm l'ullhr: Hryiuhl 45?I?Lt'fl '3 Mfr?! -: I'm rhiun In" du-t nun-h- .wl . ?ml; y?au Jim :4 am?: luv was I . r- --40 ul-Q n- 2714??) f) 5? mm: we r: ma "ya-rm? Finer Sincs'eei 159 WW 1. ,3 g't ?w?i?ji i ?i in! Leeulnla ATHSI 5% i waM 33 a? Road, Mf?nl?z?j'?de? Sandtf? 2-145; Tei: 11 73.4-1835 {Ragigmzian mi Sigwg?zom?lm Fax; +27 11 3184- 3'45? .. The Regionai Manageg: Mpumalanga Region Date: 19 Mavember, 26314 9.95323 mam? sf Miners! Resources Private Bag 7279 Emalahiar?si 1 {135 FAX: 013 696} 3228 WWI) DELIVERY FGR MR. Dear Sir, mam MP am??iz/ziiwsg MR RE: OF Mii?i?m gm 22 ma MENERALS AWE ESLEQM #363", 533.3 28 0? 20532 012% THE ?32 154?, ?35 93 1 Di: ?13 tin-L WE 1639 ET?E'i??zi?i 3 93-5 ET: ?35: 9'5 9'21? mme 3:538?v33 The carrespondance by Atha Medea Venturag- Propric-mw ijm??zed fram the Depa?men? of Minemi Rz-r-mmces {?atgd 12 Nevem?er 2034, {?gar?isig the granting a Minng Right to AAV in respect 0f We abovementione? Pmpemes, mix: 583%! dated 3.2 Novgmbar 20M, AAV wmild 31kg tea amend cur Sim-ere As gar your is: the e?gar?zm?zy to appmac?n you regar?ing cur request to giye agareciazinn mmidm?mion its this mat?va?icn Eez?mr to amend ?he curren?: mari??t?mws a?ached $0 the Mining Right in 91'er far fa??d to be in a gasation to exewte the Eong awaited mining righ??. A5 a sag-ram mint, is committed ?w adhere ali conditions Tm mgr: Granting Letter annexed to 2.21%: ?gmd 12 November, 2814 Vthe Grammy, Latter"), except for same {his cvndit?crza Emjsose? gmsier 5 china Gmming Letter. the amazing yamgw?s wig] {armada yw w?th our bom?aie and has? andeavawg to motivate ce?ain if? the mar?ti?ns, notab?y the canditians impmed ma?a? pamgzagjhs 6m am? 6 ii) cf ?che ?mntis?ag Letter, are immssibie in abide by i? a?i?mm ta the strict intarprata?iim a? the wading}; use-d in the reieva 51% paragmahs. Our sincere request is that yet} give due cansidera?zion amaadiag We Emma's paragraghs 51?} am 6(5) cm?izians of am Granting La?er, baserj on the fai?ew?ng mmi?wationz Ci,? 1 5.5-, is ?g a; in: 'r Lima 8* r, Sincsi?-?e' Plaza 159 i?iivonia mil-II 141.3 Ps-rsfsamitr? :2 his; 3; it} ?23440 u: Magi Swim? 2144 Tel: +27 1.1 ism Fax: i2?; 31 73m 72s? 1. Paragragi?: {ii the Granting zeiiar dated 39 Eaptambsr 2.313%, as Gimmes Vow isizsr {ii-after} 12 Noyembar 23:34: 1.1 Paragraph Siij provides ihat "fire grammar shaii excfude anv areas that conssiz?ru'm it is om sincere submission ihai: current wording is ambiguous and, as it stands, poses a signi??ani risk to the entire Yzermyn Uzidergromid Cm! Project sirice Zi?ie warding as it currentiy stands, iaiis to rsrogniss the mm? of mining process, in our opinion, must be regarded as a tisree dimensionai activity. 12:4 Semi exciusion, as progssed by side current wording: "The granting simii excizidg my arses that mnstituie wetlands" can be interpreted i0 mass} ?Emir sad inirastrucium activiti? are grehib?iied in ail 5L: ace areas within and in Case proximity to wetlands, as wail as a total prohibition of any mining activities in underground parties of the Yzermyn Project, whims there arr: surface waiiands. It mayr aisa be riaer am: the YUCP is masisiing sf underground mining a? 0:33! by Bord mi?ing methad, and thus have no surface mining as weii as zero subsidenca. 1.3 it is important nota that during she extensive assessment of the impacts that tine p-ropased mining actiui?iies mighi 51059 9n this; area, esraetiaiiy is 1-5752 risk thai ibis mining; daz?siagame?i? thigh: pose wetiai?id areas, it was ?95;er the?: rim impact of the gropcsed mining atii?sities, which mice piste in an aiready, previrzusiy disturbed we?ziand area, faiis stiff: boundaries remgrzisesi Uideiirias arz? six-3t the promsed miziggatian measums in fad result in, initiai gs; farther ciisriggiirin, but an oi the sirsady {iistu rims} weiiancis ciosu re. 1.4 it is aisa Emmi-ism t0 note that during ?ci?ne assessment princess of the Miring Rigi?-ts aspiisatian oi the appiicani?, the Mabeia fir-stated Enviroamsnt was deciared and that as part of size declaration process, Partisan 1 of HT was rancimiszi iwm Mshoia Praiestsd 1.5 it is our submission that the MEC: {as reguiamry cusm?isn 9i environmam in. Mpiimaianga) decision its Portion 1 5f ?(zermgm 95 HT ?rms the inmmisd deciaraiion of the iav?iabsia Protectaci invimnment in its entirety, for pumases reievant of its minis; must, be taker: into ceasi?eration. ?ght 6% ?gs- abauememtie?ed we request shy: iine Departmm?i 43?? Mimmi assumes cansi?er amea?msnt of read ?53-?23? 54 if; s. car; simii excigrde Siif?$C$ arms 51:2; ??U??zG?mg?fv?f 7 s- iv ?isms? ism-Jun V29: ?an is?? . mm: 1.7As a taken our commitment to impismeni this best practice! arisrirariman?iai mitiswion measisres, RAV has aireai?y agreed to amaad iis Mine Works . i It?img?q!? i 8 F100. Ezoosleel Pinko; .259 Rive-ma she?sa?nz. magi A ATn?s EQUUP 1 Road, Morninemde, Sassdlori, 2155:; Tel: 4:27 11 Registm?iioo No. Fax; +27 1: 784- 7:15 .- . . - in that the Residue Stockpile (Disposal Facility} w??l he removed from the plans, which will result in a mining progect that will have no physical dis agrberiee of channel valley we?aoos, sod is addition the proposed disturbance to seep wellonds will confined to the historically disturbed wetlands. It is important in note that the mitigation measures proposed to enable the best functioning of the wetland will initially o?is'mrb the weliaod, however, the furore Smooct enough? obout by these mitigation measures, will ultimately result in an improvement of the current of the Wetland 2. ?es3greph 6 {ii} of the Granting Lotta? dated 19 Septembes 29313, as a?oe??ed so your le?er elated 3,2 Nov-ember 2614: 2.1 Paragreol? Elli} states the: "Surface mining or related oci'ivity, as we]! as erection inssoilolfon of surface shall be prohibitedfmm taking place in any area that eonstirute wetlands or is deemed to be a sensitive environment. 2.2 One of the stesotory compliance requirements {has AAV needs lo a?ltere ?lo is compliance with Seven-linens Notice Regolaitloo 704, esomulgoteo? {cl lune under the ?ssional Waiter Aet, Act 35 of 19:38 {this Regolation is sgeeifle to line use of water 8? impact on water resources by mining activities}. 2.3 Since ii is ?iAV?s submission, supooried by its wetland specialist, lilies the wetland area to be disagreed is small in compayison with Elie larger irisezlezno area is}? eoschmem. in addie?ioo so tool, a large passion of these wetlands have lessen orez'ioosly clim?srlsed by eggs?eolwre, having been ploughed, and therefose are no? ozistine. AAV to were? an application, based or: flosl?nfjs of our specialism, so she Bopa?man?t of Waler and Saniiation to ARV from leaving so eomoly wish certelo pmvisiom (ENE 704 promulgate? uoder the Water Act, Act of19?8. 24 in order for My so legally operate foe proposed Yzermyn Miniog Project, AAV shall enoeewor to obtan all the necessary and or exemns?o?s provided for under see "3?31, from {he Depes?mem of Water anti Sanim?tioo as cestodiao of tire water resources of the country, prior so commeneemeot of any mining; operislions on the relevant mining ezea. 2.5m liglat of she some mentioned, it is shat the cusreot wording of earagseeh Sill} of the Granting letter be amended to meal as follow: mirage-'13. seagull agate-slim.- weezeemmiwf F0 60??.le qggvi ?rms of ENE 7?$3?mul??fcd under the (imam-cier Wars: ?of. fit? 3631' .53, from five Denorfment of Wn-?Jr Cg?ngiwflon: in. 2.5 in essence, request is that the Deoersmeol: of Mineral Resources coosidea?s grsoiiog All}! permission disturb ce?ain wetleods in line with tile sea ?3 ib?i . . . ?rm-l 333?? Road, E?ANningside; 21:111. Tel: 2? )7 2T3 Fax:+271l 784- .7355)? Reguiatiens under the National Writer Art. This entaii AAV obtaining tire nezessary exemptien from Department of Water and Sanitation as custodian of the water resources of the country, prior to commencement 0% any mining activity. 3.1 in addii?ion to the ehosr'ememioned environmentai mitigation motivation, it is immrsent to AAV to confirm that we are mi oniy cemmiised to be a responsibie miner who wiil impiement effective mitigation measures to manage any pereni?ei impact on the environment, but Kiwi: we are aise commiifred re ere-ate reai and deiiniie soda tracer-semi: ee?ei?iz?. is; :he region, as weii as the 50:23? African national imerest in driving the sustainabie deveiogoment agenda, 3.2 We aim went to reiterate our submission that AAV is committed to ee 3 ear-trier to the Mpumuianga Provinciai Government as weii as, in assisting the Province to fuifii ?c?ne mandaie and objectives of she Wekkersiroam Biodiversi?y Site wishin the centext of the Deveiczemem goais, Nationai Deveiopment Mari, Comprehensive Rural Deveiepmen?i Programme, Aeti-Peversy Stre?iegy and incai LEE: pregrammes; which rarer-ri?es a pastimes fer "reg-3i? previ?ces such as Mpumaianga, the oppcneeiries to partiefeate ruiiy in tire emnemic, socisi and peiiticai of the country. approach is 30 war? weather wire, your Beggar-Emmi eri?zsr reievsm Deparimer?iis, tea ?es-else a sustainabie sewexisterice mode? hetween minirig eonservation, a combiner? radicai revision of pests success sieries irem these semi intre?izce a strengthened, ieng term mutuaiiy benefit-ring strategy and estinn plan which, ihwugh innovative iinizages, be aligned witii eatiemi, previnciai and iecai gavemmenr biediversity and sestaimbie disirreisement Manning priorities. 33i- Ventures believes shat its own Miming and integrased Deseieemem Manning is (ti-early aiigned with the Naiierzai and Provineiei Beveieement Pisns, in that sire Warming Process seeks to invest iri the memrfsi?turing/ and energy sectors, wh?ci': beiieves Province sari National ecsr?remy on a positive growth paih. sswe aiso believe that err; appreach is aiigned wise government?s advoeacy to eremote Mis?t, Private Farinershigss {Pi-?53; as a strategy so kick and sueeor't deireieemem in saciai and ecoeomic service ercgremmes in iirae with irieai of deiivering better life for ail Saute: 3,6 in iighs oi the abovememiened we sineereiy that aiiowing AAV ire operate within framewori: ef the girorrosed amendeij wer?i?ziens ei? 6m and of the Granting setter; AAV ije in a i0 respm?isibiy mime tire 5% {h .- . 8 i502; Slnosteel Wan, Hummer Ho Finer, Sinos?reel Plaza 159 Riwnla Read; Morningsma Sandten, 2144 Tel: 927 11 ?eeisrzrarien N0. awareness-M7 Fax: +27 11 784- 7457 1' -. 33.1% 65:73.0 ,1 a a: tax: I 3:1: i a} W1 2 pr?; km! f? I see m4 managed 1-334 total in situ tons of prover: coai resource in \?zermyn Lingergreund ma! mine project. AAV planned to spend initial capital of approximately 950 Million Rands on the YUCP progect. Approximately 12.34 billion Rands out ef the revenue generated frem the YUCP progect during first the 10 years of the praject operation will. be spent under var?eus hees?s (?egis?cs, mining services, contraztors etc) within <{he Regublic of South Africa. As a direct result, the mine wii! create an estimated ?550 direct job opportunities, ensure a development income spent in South Africa exceeding 1 billion Rand, ensure a regional income stream ?io the Natienal and Wow-tidal Government in respect {if Reyaities, Rates and Taxes, as well as ensuring that sociu-emnemic growih eppertunities are provide? to the regional St? t; at wi?l cater iar skii?s development eregrammes, training and Legal Ecenomic Beveiagmen: Progeezs. 3.8 it is a fast @2121? she ?i'estyies as? ordinary peopie 5n the area will be as disposaisie income will become more available. This Speci?c missing environment is a mmplex system reqe?ring a muit?tmie 0f skiils and the app ?eniw sitar Elie (3:53??an cen?rracsers ta assessed these amend the mine. ?lm! agree-ms that by granting ARV a Mining Right, tise pro?ect is supported 53w the and the: the warding of Paragraphs 6(a) and slii) may have been? done in a? to nearest ?zine envircnment and not so ?estrate the applicant and steeping ??he Between we siege-rely hepe ?rst you will review our progressed amendments to the above mentiene? garagreens gevoura?siy? in order to reach a accepsalsie, reasonable pranks-.2253; Emp?emeeteba?ie set er? armaments. We trust: that yeu will {he ears-are in arder arse leak ferward a serum of our meiivstiorr to revise the paragraph ?ii? and 6m ofthe Gram: Letier. 3 . {3315? ?fevers sineereiy, 61mm PRAVEER SR. VICE PRESSDENT {8?2 864 3250 praseentries?niQJa?rhegmazpjn ate. $95 Ride I - it Centre for . i i Advancing Environ mentai in South siirica? .xc? Ms Skurnsa Mancotywa . Acting Deputy Director-General: Biodiversity and Conservation ?m Department of Environmental Affairs Pretoria 0001 By email: ncotywa?lenvironmenteovea cc Mr Simon Malete Administrative Support Biodiversity and Conservation Department of Environmental Affairs By email: smaiete@environmentgovza Your ref: Ms Mancotywa I Our ref: Date: 23 February 2015 URGENT Dear Ms Mancotywa THE PROPGSED YZERMYN UNDERGROUND COAL EN THE MABOLA PROTECTEB 1. The Centre for Environmental Rights is a non-profit organisation and law ciinic established to advance 1 environmental rights in South Africa. One of our areas of work, which we regard as central to realisation of section 24 of the Constitution, is the protection and defence of protected areas and areas of criticai biodiversity and hydrological value and sensitivity. The Centre also works closely with numerous other civil society organisations concerned with ensuring transparency, accountability and environmental compiiance in the mining sector. This includes South Africa and BirdLife South Africa who have worked forthe protection ofthe broader grasslands area in Mpumaianga, KwaZulu-Natal and Free State for many years, as well as the Mining and Environmental Justice Community Network for South Africa. 2. For these reasons, we supported the deciaration of the Mahala Protected Environment under the National Environmental Management: Protected Areas Act (NEMPAA) by the Mpumalanga EC in January 2814. 3. it now appears from media reports and other sources that, since that declaration, the Mpumalanga Regional Manager for the Department of Mineral Resources (DMR) has granted a mining right to Atha?Africa Ventures (Pry) I (AAV) in respect of a mining area that falls within the Maboia Protected Environment. It further appears that . AAV intends pursuing the exercise of those rights despite the provisions of section 48 of NEMPAA. 4. We urgently need to confirm the foilowing with you: 4.1 Has the Minister or the Department of Environmental Affairs (DEA) received any request from the Minister of Mineral Resources, DMR or AAV for the Minister of Environmental A?airs? written permission to mine {Enriari irrgl?fzi years-r off; lix?atdrluh-?iginn - Hr" as?; - - "on . .. ?021.9 IV In 3-er.- I I I?ll inside the Manolo ProteCtecl Environment in terms of section 4-8? if so, we urgently net-AI of such a request and any reSponse from the Minister or DEA. i . 4.2. If not, has the Minister of Environmental Affairs or DEA received any other request from the Minister of Mineral Resources, the DMR or in relation to proposed activities inside the Mahoia Protected Environment? This inciudos a request to comment on the environmentai'management programme'attached to the mining right referred to above. If so, we urgenth need copies of suchhc'orrespondence' andfor the Minister of Mineral Resources, the DM R, and the Minister of Environmental Affairs andfor DEA. 4.3. if the Minister of Environmental Affairs is considering any request for permission to mine inside the Mabola Protected Environment in terms of NEMPAA, please advise what public participation process has been initiated or is being contemplated to ensure compliance with the requirements of NEMPAA, NEMA and the Promotion of AdministratiVe Justice Act, 2000? 4.4. Has the Minister of Environmental Affairs or DEA received any notification from the Mpu maianga MEC or the Mpumalanga Department of Agriculture, Rural Development, Land and Environmental Affairs regarding an intention or any steps taken to withdraw the deciaration ofthe Mabola Protected Environment or to exclude part of the Mahala Protected Environment under section 29 of if so, we urgentiy need copies of such correspondence. 5. As there is a short and limited time period for lodging an appeal against the granting of a mining right inside the i Mabola Protected Environment, please could you assist us with this information as a matter of great urgency, and no iater than 25 February zots. Yours sincerely CENTRE FOR ENVERGNMENFAL Rita?s-HS er: 3 Meiisse Footie Executive ?irector Direct emaii: .r 35,, . ii enter I73 'Ayesha Motala From: Ayesha Motala Sent: 24 February 2015 04:02 PM ?Centralp@dwa.gov.za' Cc: 'Mdakanep@dwa.gov.za' Subject: Atha-Africa Ventures (Pty) - Application for Water Use Licence for Yzermyn Mine in Mabola Protected Environment importance: High Dear Mr Guma, Ms Matiso and Ms Diedricks, The Centre for Environmental Rights (CER) is a non-profit organisation and law clinic established in 2009. Our vision is a South Africa where every person's Constitutional right to an environment that is not harmful to health or well- being, and to have the environment protected for future generations, is fully realised. Our mission is to advance the realisation of environmental rights as guaranteed in the South African Constitution by providing support and legal representation to civil society organisations and communities who wish to protect their environmental rights, and by engaging in legal research, advocacy and litigation to achieve strategic change. thus, we supported the declaration of the Maboia Protected Environment under the National Environmental Management: Protected Areas Act (NEMPAA) by the Mpumalanga MEC during 2014. However, media reports have indicated that Atha?Africa Ventures (Pty) has been granted a mining right by the Mpumalanga Regional Manager for the Department of Mineral Resources, which falls within the MPE and is near Wakkerstroom. it also appears that Atha-Africa Ventures intends to pursue exercising that right regardless of Section 48 of NEMPAA. We therefore urgently require the following information please:- 1. A copy of any appiication by Atha?Africa Ventures (Pty) to the Department of Water and Sanitation for a water use licence for the Yzermyn mine; and 2. A copy of the approved water use licence, ifone has been approved. l?indiy note that as this is a matter of urgency, if a response is provided as soon as reasonably possible, it would be ofgreat assistance. 'rhank you. Kind regards, Ayesha Motala Candidate Attorney Centre for Environmental Rights NFC A non-profit organisation with registration number 2009/020736/08 3280 No. 930032226, NPO No. 075863, VAT No. 4770260653 and a Law Ciinic registered with the Law Society ofthe Cape of Good Hope 12?? Floor, Springtime Studios, 1 Scott Road, Observatory 7925, Cape Town, South Africa Tel: 021 447 1647 Fax: 086 730 9098 ma ii: ametalate. Web: and foilow us on Facebook: "7 theatre? water 3< sanitation Department Water and Sanitation :i REPUBLEC OF SOUTH AFRECA Enquiries: AB Singh Teiephone: 012335 7532 Reference: [316371 Me. A Motaia Centre for Environmental Rights NPC 2"d Floor, Springtime Studios 1 Scott Road OBSERVATORY 7925 Dear Me. Motela VENTU RES LTD FOR A WATER USE LEGENCE FOR YZERMYN MENE iN MABOLA PROTECTED ENVIRONMENT The above matter refers. Please be informed that you are required to request the information related to this matter via the Deputy Chief Information Of?cer: Chief Director Legal Services Mr. Pueeleteo in accordance with the prescribed format, stipulated in the Promotion of Access to information Act, 2000 (Act 2 of 2000). i trust that you find he above in order. Yours sincerer Ms E321 Diedriok DIRECTOR- GENERAL Letter signed by: Mr. AB Singh DEPUTY WSR DATE: 3 7 WW @wm? APPEAL TERMS OF 986!) OF THE MWERKL AND PEFROLEUM RESDEJRCES ACT, 2392 AFRECA SOUTH A33RICA AND NETWORK OF SOUTH AFRICA ENANGERED WELDLFE FEBERATEDN FOR A SUSTNNABLE FOR WATER AND RURAL DEVELOPMENT ELEARKS IN RE: OF REQU REES saffHA-Af?i?? VEHTURES {gum LTB 0F - -- .. .. APPELLANT SECOND APPELLANT FGURTH APP ELLAFQT FEFTH APPELLAMT APPELLANT SEVENTH APPELLANT EEGHTH HOLQER HS E, {he undersig?ed, A i5 591% 5 QCEEUZ mem (it: haseby make math and say that: 1. i am an aduit emplaye? as a candidate attorney by Lawyers for Humans Righis of Ku?wana?g Demecracy Game, 357 Visagie Street, Prams-Ia. I am duiy authe?sed ti} {?epase {a ?his affidavit. The fads depased En {his af?davit are wishin my personai know?edge, unless afhemise staied or ?ndicaied by the cmtext. am are, is ihe best of my be?ief, true and earnest. On theeffi day of ?g r5 2015. and beha? of ?he {39mm for Environmensa? Rights, {32? 2nd Hana Epring?ma Siudios, 1 300%: Road, Observamry. Cape Town, $13 harem, i dei?vemd She Enigma! appeal in this ma?er to the M?r?a??emr a; Minerai Reaouraes and is {he $521316; Gamma, Baga?ment of Minerai Resoureas 3% Black EC, Hear. ?evema Campas, ?smar of Franais Eaard and Maimjies Streets, Sumw?de, Praferia. a?anm marked ink-arm? appeai rafiacging the and 323mm far {he M?ni5?er a? M?nera? Reaources aad the Director Genarai, {Esammam at? Was-3:3! Rescumea yagpea?vew 9:1? . .m w- Name: ll?bah ?wcl?izq I hereby certify that the daponent dec?ares that the dams-lent knows and understands the contents of this af?davit and that it 35 to the best ofth depana??*s knowie?ge both {mg and correct. This af?dav? was signaa? anti guitar?! to before me at on this day of 5? 2915 am the Ragula?sns contained ?n Government Na?ce R1258 0f 21 Ju?y 19?2, as amended. have been camgiied herewith. f) hm.? - .-- CGMEWESMEQER 8F GATHS ARTHUR SENGENE Ccmmissimer Hf {1.1313 fl. was? unamrF Pnerdri? :cL: C112 TF1 SUSS (SELL: {733 953'! 5953 E-maxi: a?hurz??gsnut smug-221 at CAFE FOWN 0f} ibis the 30?" day of MARCH 2015 for and on behaif of the/ agpei?ems . CENTRE FOR ENWRONMENTAL A?ameys for the apgeizants 89:29:16 Fiaor, Spring?eid sz?m 1 Sam Road abgewamry Cape Town 7925 Tel: 021 447 1647 Fax: 085 730 9098 E?maii: Ref: Catherine Hom?eld 3?0: HONOURABLE MENNSEER NGGAKO OF RESOURCES . . 'l r: Biock 26,41" Fimr 'g?revama ?ampus Earner gf Haws Beard and Memi?es Streets I p.165 if 3 aunnysade it I Pratmia I A?e?tien: s'?essrs Meter Aiberts and .143th N?eman ?l w" Legai serviws Department of Mineral Resources 83: comi?r ANS T0: Begartme?i 9? Mineral Resources 3339sz e651? Ftcar m, we E'ravenna Camgus . - (Lemar 9f Ffancis Baam and Meintj?es Streets v, Sm?ys?de I K, Pretam 3 ?39; "310% fun->5. Refer-533m: Dr Thi bedi Ramontja ?w we 5y Gamer 3. AND T6: ATHAJAFRISA LTB Stigmata?! P5323 ?i529 Rim?ia Ram Sammy: Reference: Mr 9733mm E?r?pathl 832* came? . viva-mama: - AWJEAL 3N EERMS OF SECTION 96(1) OF THE MHNERAL AND PEYROLEUM RESOURCES BEVELQPMENT ACT, 2062 EARTHLEFE AFRMA BERDUFE SOUTH AFRMA WMNG AND ENVERGNMENTAL JUSTICE OF SOUTH AFRICA ENDANGERED WELDLIF TRUST FEDERATION FGR A SUSTAINABLE ENWRONMENT GROUNDWORK FOR WATER AND RURAL BENCH MARKS FOUNDATEGN EN RE: DEFARTMENT 0F MINERAL REOURCES ATHA-QFMCA VENTURES LTD .-. 0F SERVECE FERST APPELLANT SECOND APPELLANT APPELLANT FOURTH APPELLANT FIFTH APPELLANT SEXTH APPELLANT SEVENTH APPELLANT APPELLANT QECESON-MAKER Rim-i? HOLDER E, {he mwdem?gae?, 1%0 JESSICA LAWRENCE do hereby make oath and say that: l. i am an edoit candidate attorney employed as sueh by Lawyers for Humans Rights of 4th Finer Heetengracht Buiiding, 87 De Kerte Street corner Melie Street, Braemfontein. i am doiy authetised to depose to this af?davit. 2.Ti1e facts deposed to in this af?davit are within my personal knowiedge, uniess otherwise stated or indicated by the context, and are, to the best of my beiief, true and correct. day of 2015, and on henaif of the Centre for Environmental Rights, of 2nd Eider, Syringtime Studios, 1 Scott Road, Gbservatory, Caee Town, attorneys for the herein, i deiivered a copy ef the internai appeal in this matter to VENTURES at its registered address at 3th Fieor, Sinosteel Piaza, 159 Riyonia Head, Sandton. 3.43:1 the 5i 4. As i did not have the woman at the front desk Sign and date the documents denoting that size had them on behaif of mite-Africa Ventures on 1 eerii 2015, i caiied iier iatet that day. i asked her to send erooftiiat size had indeed received the documents on behaifef ntiiaefriea Ventetes on i Agni! 2015. i attaeii, marked a copy of gage ?53 of the internai appeal reflecting the signature seniirming receipt on hehaii etAtiia-Africa Ventures {Pty} on 1 Aprii 201,5. RAVE hereby ce??fy that the deponent declares that the deponent and understands the cantents of this af?davit and that it is to the best of the deponent?s know?edge ho?z true and cerrezt. Th?s af?davit was signed and sworn to before me at JOHANNESBURG or: this 9 day of APR N- 29315 and the Regulations contained in Government Notice 31258 of 21 Ju?y 193?2, as amended, have been complied herewith. sf? . OF LN. CDMMISSIGNER OF DATHS ?fty-Practicing Anarney- Corruption was}? 8 Floor, Heerengracht Bu?ding 8? De Harte Street, araamfonrein I Md m1 i ll, ?41 at CAPE ?Fwa an i?is the 36behan of the apgzaiiama FOR Ramsey?s; Em me- "who, 0-. "5 88mm? Ram. Egsr?gwg?a?d S?m?m 5330?? Road Obaawatory hm?: Town Tel: 02?! 1547 Fax: 08% '5?33 @393 Emaii: Raf: Catharina ?zam?e?? TO: ma?s?sm? NSOAKQ MMATLHODI msmam? gamma. ?iaak Kit Fwy-:3: "?awemaa $323933; {Emmy Bianca 3nd Mmrz?i?a? Eirea?ag? ?mayame ??mtwm m?zsm?s Piete: ?ibgrm am} $933531? Nieman ngal gaw?sesa Dwa?m?m {33? m?mml Resonances; 53y cou?er Mia T423: ?wg?ma?i as? {vislae? Resources E?mk E?iaiimm Canaws Samar 6% Francis 3:351?! and Meiwajies Streets: far-62mm mu Rewra?ga: Sr T??mdi Ramzm?ga "Pughu?i?lhm? J: I, ?u :55. . LTQ ir?wr, 3%:23Steei 9:323 51mm Rags} (.5, 55?? 53?; 395393? ?2?:??g?aihi azzwiar "flu" . i?h'ul'fr xw,? I, I ?essigg Lawgg?cg From: Cc?siance Maswum yahszmem] AME 133635 SHE: PM 'E?m Jaasma Lawmnce Suhgaci: CONFERMKFION SF: DOCUMENT ??achmenm: 201594301 125553.,pdf Hi, please find attached document ccn?rma?on as requested regards Constance (is ?Wazsgg? 2015-94-02 0?:09 LEGAL SERVICEE 0124443133 09 900 1/1 fig,? Sam: '20 Li} .L 452? mmem? ream urcea 5 Q, r-Ainararl Remurcaa may mpuauc 3mm mama Pram 5&3 x59. Mama. (m7: Tman?a campus: minim $330!. Surinwida ?Fatima; Famw ?@333. Mama; Pram: {Wei ?imcimate: Lagaf Sem?cas Emumas: Audrey Ratios: ntre for Environmental Rights Finer Spring?ma Studias 1 Scott Roar: Ghsewatar? CAPE TOWN F925 Yum Raf: CHMT E32 201 3353? Sig; HQTEE 3F QF T0 LTD REEPECT OF PROFERWES FHE MPUMMRSA REQUEST FUR THE SUSPENSIGH THE Gait-NT 6F MENWG FERQWG THE APPEAL ?eceipt Wm appeal ?mm 3i} Marsh 2915 mgaihaa: wig?: 9mg? paynmni haraby acknuwiedqad. Pic-aw now amt yum apnea!" E3 mm??rzg a?en?m arid f9? fa?har 51:: not hasitata in ?agrant ma. af?ne, Wists; fr??bfu?y. ENE HAL WNERAL fat w- . '31] 3-3; 23-h en ?e ironwe nt in Kmaitmg 3.43 Null Fiw- ?ll-m t? 3 .t :?jaf? $93? . s. '9 y?a??ilxwititst wit?r?rtt lawyer?) ti :?nii new: The Honourable Minister Ngoako Ramatihodi Minister of Mineral Resources Department of Mineral Resources Block 2C, 4th Floor Trevenna Campus Corner of Francis Beard and Meintjies Streets Sunnyside Pretoria By email: Kefilwe.Chiboeo@dmr.gov.za By fax: 012 461 0859 Your ref: Our ref: 2 April 2015 URGENT Dear Minister Ramatihodi APPEAL AGAENST THE GRANT OF MENENG REGHT TO (PW) LT FOR OFTHE MINING PENDENG THE OUTCOME OF THE APPEAL REQUEST TO CQNSEBER, EVALUATE OR ANY REQUEST FOR WRETTEN PERMEESEON EN TERMS OF SECTEGN 48(1i?h) OF NATEONAL EMVIRGNMENT MANAGEMENT PROTECTED AREAS TO CONDUCT COMMERCEAL MENING EN MABGLA PROTECTED ENVERONMENT DETERMENATION OF THE APPEAL 1. On 1 April 2015, eight civil society and community organisations, represented by the Centre for Environmental Rights, submitted an appeal against the grant of a mining right to Atha?At?rica Ventures (Pty) {Atha} to conduct underground coal mining in the Mabola Protected Environment declared as such under section 28 otthe National Environmental Management: Protected Areas Act, 57 of 2004 (NEMPAA). 2. The eight organisations are: Earthlife Africa, Johannesburg, Birdlife South Africa, the Mining and Environmental Justice Community Network of South Africa, the Endangered Wildlife Trust, Eederation for a Sustainable Environment, Bench Marks Foundation, Association for Water and Rural Development (AWARD) and groundWork. 3. One of the primary motivations for the deciaration of the Mabola Protected Environmentwas to protect this unique and irrepiaceable area from the detrimental environmental risks and impacts of coal mining. t9 10. i In the internal appeal under the MPRDA, the appellants seek the setting aside ofthe grant of the mining right in its entirety, including a number of vague and unlawful conditions pertaining to the environment which were imposed when the mining right was granted. Given the extreme environmental sensitivity of the area, the appellants simuitaneously lodged an application for the suspension of the mining right pending the outcome ofthe appeal. One of the grounds of appeal is that the mining right was granted notwithstanding that, as far as therappellants have been able to establish, the written permission of the Minister of Environmental Affairs and the Minister of Mineral Resources in terms ofsection 48(1)(b) of NEMPAA to conduct commercial mining in the Mabola Protected Environment has not been obtained, or sought. The appellants have addressed a letter to the Minister of Environmental Affairs requesting that, pending the final determination of whether the grant of the mining right to Atha was lawful, the Minister not take any steps to consider, evaluate or decide any such application as may be made by Atha for that Minister?s written permission to conduct commercial mining in the Mabola Protected Environment. A copy of that letter to the Minister of Environmentai Affairs is attached. The appellants hereby make the same request to the Minister of Mineral Resources. Furthermore, the appellants expressly request the Minister of Mineral Resources to consider and determine the appeiiants? application for suspension ofthe mining right pending the final determination of whether the grant of the mining right to Atha was lawfui. The appellants expressly reserve the right to approach the High Court at any stage should it become necessary to take urgent steps to protect this unique, irreplaceabie and highly environmentally sensitive area. Yours faithfully CENTRE FOR ENVIRONMENTAL REGHTS pe r: Meiissa Fourie Executive Director Direct email: mfourie@cer.org.za :"fziioeret tesotimes $3 DIVER liq? Department: Mineral Resources REFUBLEC OF SOUTH Pretoria Private Bag X59, Arcadia, 0007. Trevenne Campus. 70 Meintie Street, Sunnyside 444-3285. Fa x1086 710 0933. Ref: 913481333 From: Chief Directorate: Legal Services Enquiries: Audrey Ratiou Centre for Environmental Rights 2'?j Floor Springtime Studios 1 Scott Road Observatory CAPE TOWN 7925 Ref; 12 May 2015 Dear Sir, RE: OF APPEAL Oi: E?itz?iNG MPSGISIWZQHUGEQMR T0 ATHA-AFRECA VENTURES LED it?i RESPECT OF PROPERTIES THE OF WAKKERSTROOM, MPUMALANGA REQUEST FOR THE SUSPENSEQN OF GRANT OF THE AFGRESAED REGHT PENSWG Brig GUTCGME Gt: THE APPEAL The. above matter refers. Attached hereto please find the comments on the appeal as eubmitted by Athe?Africe Ventures (Pty) Ltd. You are afforded the opportunity to comment on these documents within 21 days of receipt hereof. Your detailed responses are kindly anticipated within the abovementioned period. and on receipt of this notice, alternatively failing to reply, office will proceed with the facilitation of the appeal exclusively on the documentation in our possession and without further notice. IKE Please be advised that the reasons from the Regional Manager remain outstanding. Those will be provided to you once We office receives same. Yours faithfully, MENERAL RESOURCES ?g?m??ggm MIMSTER MINERAL QF AFRICA Enqairies: Mugagadeti Ref No: MP MML the Direatsrg Atha-Africa Ventures (Pty) 33 Box 1559 2157 Fat-ax No. wit) ?84 7&6? Gentleman/Ladies APPLESAFION FOR A MENRNG REGHT EN TERMS OF SESTEON 22 SF THE AND RESQURCES ACT, 2802? OF 23-92}; it?d REEDECT THE BLOEMHGF 32 HT, 35 Ht", 93 HT, PORTEGN ?t 031?: YHE ??30 gt?) REE HT, 1518 HT, 2 AND THE REMAENENG Gt: 5%sz VAN DER 81 HT, WAALHOEK 37 1 AF-ID THE EXTENT OF Tt?tE Wig-M YZERMYN 96 END $4 HT EN WAKKERSTROGM. 1, After caiefui considetation. I. Ngaam Abel Ramatthodi, Minister of Minetat Resources, in teams of secttm 103(4}(b) of the Act. hareby amend the daciston made by the Director-General on '39 September 2014, to grant a mining right to yet: agitated to the condttions contained in the gran-{tag tatter. 2. Tttis therafare games to tnfotm you that your ab?vementioned fez a m?i?tt?g right to mine Cat in {aspect of that abovemantioned properties has been granted in terms of section 23(1) 1?1 of the sbovemeottoned Act. The Regionei Office wii! prepare the free! copies of the right to be signed. 3. Take note that the Regional Manager wiil approve the reievant Environmeetei Management Programme and sign the right. 4. Further note that in terms of Section 23(5) of ihe Act the mining right comes into effect on the date on which the Environmental Management Programme is approved. in terms of Section 25(2) mining activities must commence wiihin gear of the effective date. 5. in light of the atom?going. you are requested to: 4.1. id) Ensure ihat ail ooietanding matters regarding your are finalized and that reieveet documents are submit?ted to the Regionsi Of?ce no tater then 30 prior to tie date mentioned in paragraph 2 above, which outstanding matters. inoiude the submission of: financial erovieion be provided before execution the of your authorized representative who sign right, the of the public notary. before whom the right must be signed. two (2) copies; of the fian mining work programme, A diagram prepared by a surveyor 8 {six} origineie in eocordenoe with the requii'emente of the Mining Titiee Regieiretion Act and which shail indicate? (ii the more eoint: tine 20 writers the oien has been drawn; OF BECBIQN OF DERECTOR-GENERAL: RESOURCES TO AMEND QARAGRAPH 6 3W9 {ll} OF THE (355% RNTEGN LETTER Ss'iiri?. VENTURES LTD MINING RIGHT HO a] the meme, number registration division end portion of the term or terms on which the relevant area is situated; (iv) the shape of the reieveet area in relation to the term boundaries end co-ordinates eoiete; the iegion in which the relevant farm is situotett end; be certified. approved signed and dated by the tend surveyor, unless the Eireotor General otherwise indicates. (vii) two copies of the Social and Labour Pian 4.2. Please make arrangements for the pubtic notary, authorized of your comeeny end a witness to be present and otteno the signing of the mining right once the outstanding mettere are weri?ed and an execution date has been ?nalized by this Office. 6. Note further that in terms of Section the signedfexecuteci mining right must be ioeged for regietietion at the Mineral and Petroleum Titles Registration Pretotie, withie 30 days as item the ate of approval of the relevant environmental management program. 7. noting the provisions of section 23(5) of tee Act. the foiiowing eheii be You may not commence with mining operations prior to the obteioing oi a Water License from the Department of Water Affairs; (it) You may not commence with mining:a operations prior to the obtaining ee of Eovironmeetel Authoi'izetieo from the Sepeitmeht oi Ehvitoomeetei A?eire; and vettiomwm. oF DECISION or err-tromnnemseo: attiteesxi, RESOURCES TO AMEND PAHMMW 6 ii) MB OF THE Lame ATHA (Fri/i Matte motor 530% ital ?i I 3 2 ?2 muat comply with a? other waged legis?ations bea?ore the commencement of mining. 8. Faiiure to compiy may result in the withdrawal, suspensmn or cance??at50n of the right in question. Yours faithfuiiy (W 5J1 ADV A RAMATLHUDE RESOURCES DATE: 1%[oe2r @915 WITHDRAWAL DP 9501330" 0? RESOQRCES T0 AMEND PARAGRAPH in ANG 0? THE ?nMT?-j? LEFTER NET-M 455213;: Wm 1,15! FuiiNlN? {10389 Tel: +27 11 7311?: 75352:?) Fa>z1+2? 31': 75'34- lief-ii? Registratlen N9. 2904f?82i3??5/.-. LEGAL Date: 24 Ag: rll, 2015 Department of Mineral Resources Private Bag 59 Arcadia 0007 FOR AWENTION: Audrey Ratiou P55: Emmi: Bear Madam, RE: THE NOHCE OF ANE Ti} SUSPEERFD TEE RiGi?i? THE OF kiw'E?EAi, il?i KEEPECE 'i?iiE {Biz A Mii??i?? $694? 0M TEE Qi??i? OF EN $80Vii??ii?i. The recent meeting between yourself and representatives of Africa Ventures Proprietary Limited as wail as the letter signed by the Director General: Deeartment of Minera i?DiViR?}, dated 02 April 2015, but only reieived by Aim Attica Ventures Limited 0n the 20th of April 2015, in respect of the abeveezentioned matter, refer. As per our eiecussion with veu on the 21St of April 2015, we informed you that AAV cannot sebmit a fennai {as per your {equest of 2 Aprii 281310 the Notice of Appeal and {equest to suspend the Mining Right pending the outcome of the Appeal, submitted by the Centie for Envimnmentai Rights in respect ef of 33 Mining Right (Mi) 30/5/3/2/?2/18069 to AAU for the following reasons: 1. On 12 November 2014, AAV received a letter from the Regional Manager: Mpumalanga Region, DMR, with an attached letter dated 19 September 2614 ("the First Granting Letter?), signed by the Director-General: Department of Mineral granting, subject to certain conditions, 3 Mining Right to NW. 2. The First Granting Letter, provided that the Directorw?eneral could be approached by shenld have any queries the conditions relevant 2'3 the nting of the Mining Right, and if affirmative. subsequently required any amendment to such conditiens?rise,? 5? - v- - 1:1 {Egg??gs ?gu??g g5; ?3 ?23553 3' Finanbmesteei item. we ngtji, Morningsgide?, Sai?xri'zrwz, 2145-. i 1 tit {Weird Tel: 11 egistration No. merriezersezor CW +27 11 m4? mm ..-- . On the 15}lh of November 2014, AAV sent a formal request, including a detailed motivation, to amend the conditions of the First Granting Letter, to the DMR. (hlease find attached hereto the relevant motivation letter as Annexure As a starting point to the above-mentioned letter, AAV SXpressed its commitment to adhere to all conditions listed in the First Granting Letter, except for some of the conditions imposed under paragraph 6 of the First Granting Letter. ln the ensuing paragraphs of the relevant letter, AAV provided the DMR with a detailed motivation as to why certain of the conditions in the First Granting Letter, notablyr the conditions imposed under paragraphs?li) and Bill] of this Letter, Would be impossible to abide by, should AAV be forced to adhere to the strict interpretation of the wording used in the relevant paragraphs. Following the motivation, AAV requested the DMR to give due consideration to amending paragraphs 6U) and 6(iilot the conditions in the First Granting Letter. Subsequent to the submission of the above-mentioned ?request for amendment of the conditions of the First Greeting Letter?, AAV was informed that the Regional Manager, after given his due considering to the relevant request for amendment of the conditions, forwarded his recommendation to the ?irectonGenerai?s of?ce for review and further recommendation, and thereafter the Director-General forwarded the final recommendation to the Minister for the final consideration and decision. am; only received a response to initial "reqtrest for amendment of the conditions of the First Granting Letter", on the 14?? of April 2015, Via a letter from the Office of the Minister: Mineral Resources, which letter ("the Second Granting Letter?) that, after due consideration, the Honourable Minister decided to amend the conditions of the First Granting Letter, which ultimately resulted in the issuing of the Second Granting Letter. (Please find attached hereto the ?the second granting letter? as eneexure - 2). On the 20?? of April 2615, via ?ost Office Mail, AAV received a ietter [Signed on the 2?:1 of April 2015) from the Director General; Department of Mineral Resources informing; AAV that the CER had submitted a Notice of Appeal and request to Sti?tf?eiid the Mining Right pending the outcome of the Appeal (?the Notice"l, in of the granting of a Mining Right 30i5/1/2f2/10069 MR) to NW lie. the Notice was submitted in terms of the First Granting tetter]. ZiPage {h .., -l 4? . 8 ?oor, binomeel Mara, invonia Road, iviornirtjride, Sandman, 21534 'erd SEEM A .3. rife REA if 5&5 {My} {id Raei?m?iien 1?40- . 10. AAV immediately convened a meeting with you, Ratlou, (the meeting of 21?St April 2015) to inform you that AAV submitted its "request for amendment of the conditions of the Hrs: Granting Letter? as far beck as 19 Novemher 2014. Furthermore, AAV once informed by you of the Notice submitted by CER, immediately engaged with you. In light ofthe above~mentioned, AAV herewith, formally request that the relevant of?ce within the informs the CER that the Second (FINAL) Granting Letter was issued to AAV on the 14?1 of April 2015? and as a result the First Granting Letter became Nu? and Void. Naturally following from the annulment of the First Granting Letter, no Appeals can be entertained in! the DMR in respect ofthe First Granting Letter. 11. We trust that you will ?nd the above in order and look forward to your acknowledgement of receipt of this letter and any reply, should you have any further inquiries. You rs sincerely, I . . MORGAM MUMSAMY VENTURES Cell: 033 {355 5362 Email: BlPage 1 grim r,tl - . I oer, binosteel new, 159 .xl?eonla Road, Morningside, Sendton, 21M Cm?m {m @th M5 Audrey Ratiau Legai Serviceis Hepartment of Minerai Resources. Trevenm {Campus Mamtji'e Street Sun?vside 0007 By emaii: simd By fax: 086 ?1900 933 And to: "MrJohan Nie?m'an Legal Services Department Department of Mih?eral R'es?o?uzces By email": Aisha yam . Mam an??d Your mt?: ?raf: 26 June 2015 Sear Ms Ration APPEAL AGAENST THE GRANT mums To ATHA-AFRICA VENTURES [Pm LTD IN RESPECT OF PROPERTIES IN THE MAGISTERIAL DBTRICT or: MPUMAIANGA FOR THE SUSPENSION OF THE GRANT OF THE Asa?ssmn mam ?Mi Q?f?Q?ng? THE APPEAL M33 Em. m. 9322331333 We refer t0 the Entemai appeai {edged by the Centre for Env?mnmenta! Rigms on behaif of a number sf civit society and organisat?am en 1 AM 2615 agahsi: the grant 0? a mining ?ght ta Atria?Africa Ventures iirhit?d for the prams-ed Yzemwn undergmumi ?an mine over grammes situate in the Mamie: Pratected Eni?mnment $15 the Wakkarstroom W?tia?ds Area. 1. On Friday 2-2 May 2015 the Baga?ment Minerai Resaurces sent the CER a ietter dated 12 May 2015, a ?993; of which is; attaCh-ed, marked enciosing "somments on the appear! as submitted by AmwAfrfm Ventures and affording @ur ciients an swan-unity to commant on these dacuments. Z. The commesits constitute a letter dated 2.4 April 28153,. together" with two annexures, sent by em to the Chief Bitector: Legal ?ewices: BMR in it submits that it "cannot stz?mit a formo! response? to the stjtieal and aegiiestien for suspensien. A copy oi the letter is atieehed, marked 3. it appears from the comments that on 19 November 2014 AAV submitted a reqoest addressed to the Regional Manager: Mpumeianga Region for tire amendment of conditions ?li) and GUI) imgziesed when the mining right was granted by the Dimmer-General {05} an 19 September 2014. The request is annexure 1 to ietter. 4. Dan 14 April 2015, the Minister of Miners? Resources {the Minister} sent a Letter addressed to the directors of AAV in response to the request for an amendment of the conditioos. E?he Minister?s Fetter is annexure 2 to {otter {the Minister?s fetter). 5. in the fins! paragrth of the letter of 24 April 2015'; AAV requests-the DMR to inform the CER that the "Second (FEMAL) Gran ting. tetter was issued to AAV on the 14?? oprrii 2015, and as a result ti'ie First Granting Letter became Nuii and Void. Naturoiiyfoiiomng from the onnoiment of the First Granting better, no appeals can be entertained by the in respect of the First Granting Letter." 6. contentions are ?awed. it is incorrect to refer to either of the two letters as "granting ietters?. A "granting letteg? does not constitute the actual administrative decision in terms of which a mining right is granted. Such a iei?ter is mereiy the means by which the decision which was taken is e?mmunieeted to the appiicant. i?i?ie initial decision taken by the 06. to grant the mining right to is evidenced by the approve! by the 96 of the made to him by the veri?es within the 7. Nevertheiess, it appears from the centents of the Minister? 5 ietter that the Minister withdrew the decision made by the DE sad took a iresh decision to grant the mining right te- AAV. Our tiients? instructions are te iaunch review in the i-iigii Court against that tiecisiori of the Minister. 8. in the circumstances, our tziient?s request that the apgeai be. suspended pending the outcei'oe of the review proceedings; in the event that the appeai proceeds after the determination of the review, our ciients? rights to suppiement its appeal submissioi?is are reserveci, including but not limited to, incorporating any aSpects arising from the ire-view and the furnishing of reasons for the grant ofthe right by the or; which remain outsteodiog. Yours sincereiy if seems see ENWRONMENTAE. REGHTS (a :49: . Catherine Horsfiei?d Attorney Meg-gramme iiead: Mining Mr,? a . "Ermw 77. 76.4. 76.5. 76.6. should any form of coal mining (own emphasis) be pursued, it will have extremely negative impacts on this important water production area and any form of mining in such an area is considered inappropriate and of severe consequence to sustained ecosystem functioning; the MTPA submitted an application to the DMR forthe Minister to prohibit mining in this area in the national interest in terms of section 49 of the MPRDA including because the area: 76.51. is critically important from a water production perspective; 76.5.2. is largely classed as irreplaceable by the MBCP and thus crucial for the achievement of provincial and national conservation targets due to the biodiversity features located there; 76.5.3. is located in endangered and vulnerable threatened ecosystems (in terms of the Biodiversity Act); 76.5.4. falls within provincial and national priority Protected Area expansion zones. The mining application falls within areas classified as endangered and is classified as largely irreplaceable, highly significant and important and necessary by MTPA in the MBCP. The north western corridor of the mining application falls within an important ecological corridor. On 27 October 2014, WWF-SA addressed a letter to EAP objecting to the granting of its client?s environmental authorisation application under the National 30 78. l?i?i Environmental Management Act, 1998 (NEMA). A copy of the letter is attached, marked WWF-SA objected on the bases that: 78.1. In a specialist report submitted by Natural Scientific Solutions CC to EAP for submission as part of the environmental impact assessment report to the Department of Environmental Affairs (NSS Report), the following is stated in the executive summary: ?Although the proposed surface infrastructure layout plan will comprise a small portion of the target mining area, the combined Baseline and Impact Assessments (sic) indicate that the THA Yzermyn Coal Project] (sic) is fatally flawed, and should be NO GO in terms of Biodiversity .[our emphasis] This is largely because the impact of the proposed underground mining on the supply of water to the surface water resources (due to de-watering activities) and the potential groundwater contamination. These aspects will have significant impact on aquatic and wetland ecosystem functioning and biodiversity in a far greater area than the underground mining area. This aspect of the mining project, alone, is in strong conflict with international, national and provincial legislation, policies and guidelines. A large number of Cl [Conservation important] species were detected, and most habitat in the proposed underground mining and surface infrastructure areas was assigned a Very High or High sensitivity. Most potential impacts of the mining operations had a HIGH overall signi?cance rating, even with mitigation. Moreover, the cumulative impact of numerous mining applications in the study region are of serious 31 78.2. 78.3. 78.4. 78.5. 78.6. 78.7. 78.8. 78.9. 78.10. 0100 the DEA justifiably rejected initial application for environmental authorisation; the mitigation measures proposed by EAP in the revised EIR are inadequate to address the biodiversity issues raised in the NSS Report; the proposed mine will prevent or hinder provincial and national Protected Area expansion targets from being if it is allowed to go ahead; the mining area is characterised by ?serious aquatic and hydrological sensitivities that cannot be mitigated;? the proposed mining project will impact on the Protected Environment as well as two other adjacent Protected Areas, i.e. the Kwamandlangampisi Protected Environment and the Tafelkop Nature Reserve; the proposed mining area falls within the proposed Wakkerstroom Wet Grassland Section 49 Exclusion Zone; the ecosystem is classed as ?endangered? in the Listed Ecosystems Regulations; the mining area is classified as irreplaceable in terms ofthe terrestrial biodiversity assessment; the north-western portion of the proposed mining area falls within an important ecological corridor and may well impact negatively on the functioning of this ecological corridor; 32 Vim \tl, 78.11. 78.12. go: the granting of the mining right was in clear contravention of mining policy; and the project is not ?in the national interest" as suggested by EAP it is not in the national interest to sacrifice South Africa?s natural heritage, water security and food security for a relatively short-term economic gain. THE GRANT OF THE MINING RIGHT 79. Despite all the substantive objections from state and non-state bodies described above, the mining right was granted on 19 September 2014. A copy of the letter from the DMR advising AAV that it has been granted mining right is attached marked In an apparent attempt not to completely ignore environmental considerations in the face of the strong opposition to the granting of the right, a number of conditions were imposed:? 79.1. 79.2. 79.3. 79.4. the granting shall exclude any areas that excludes wetlands; surface mining or related activity, as well as erection/installation of surface infrastructure shall be prohibited from taking place in any area that constitute wetlands or is deemed to be a sensitive environment; the applicant shall formulate proper mitigation measures relative to the area in consultation with other stakeholders/authorities that administer matters affecting the environment at National and Provincial (Mpumalanga) level; a proper plan/map shall be submitted with a clear depiction of such exclusions; 33 80. 9021 Those conditions are fundamentally flawed for the following reasons:- 80.1. they are premised upon mitigation of environmental impacts of the proposed mine being possible in circumstances where all the evidence before the DMR was that mining should be prohibited in the area; 80.2. the mining right and its conditions are not subject to the written consent of the Ministers of Environmental Affairs and Mineral Resources being obtained under NEMPAA for mining in the Mabola Protected Area; 80.3. the conditions are irrational and not rationally connected to the purpose for which the right was apparently granted: practically the whole area is "sensitive" that is precisely why it was declared a protected area under NEMPAA. The sensitivity includes that it is a strategic water resource; 80.4. they are so vague as to be practically unenforceable. LODGING OF THE APPEAL 81. 82. The CER became aware that a mining right may have been granted to AAV. It took numerous steps to find out whether a mining right had in fact been granted and to obtain further relevant information such as whether the environmental management programme has been approved. Copies of the letters which it sent are attached marked On 23 February 2015, the CER sent a letter to the DEA enquiring whether or not AAV has requested or applied for written permission from the Minister of Environmental Affairs in terms of section 48(1)(b) of NEMPAA and whether or not AAV has been 34 0103 granted environmental authorisation for the proposed Yzermyn Underground Coal Mine. 83. The response from the DEA, dated 25 February 2015, is attached marked According to that response, an environmental authorisation has not yet been obtained. It, however. remains unclear whether or not AAV has requested/applied for written permission from the Minister of Environmental Affairs in terms of section 48(1)(b) of NEMPAA. 84. On 3 March 2015, the CER received confirmation of the right granted in the form of a blank email from the DMR to which a copy of a letter from the DMR to AAV was attached. In that letter, the DMR notified AAV that its mining right had been granted subject to conditions (is. annexure 13). A copy of this email and letter is attached as 85. The Appellants all first became aware of the grant of the mining right, as confirmed by the DMR, after the correspondence to the CER of 3 March 2015 (Le. annexure 18). 88. The Appellants reserve their rights to supplement and/or vary this appeal if further relevant information is received. GROUNDS OF APPEAL 87. The evidence set out above supports the following grounds of appeal against the granting of a mining right to AAV in respect of the properties: 35 87.1. 87.2. 87.3. X09 all available evidence. including a report submitted as part of application for environmental authorisation, indicate that the mining will result in unacceptable pollution, ecological degradation or damage to the environment, contrary to the peremptory requirement of section 23(1)(d) of the MPRDA. The report by a consultant appointed by AAV recommended that the area should be declared ?no go? for mining, because of the impacts of mining on biodiversity and on the supply of water to the surface water resources; that the mining right is in respect of properties that fall within the Mabola Protected Environment, but that the written permission of the Minister of Environmental Affairs and the Minister of Mineral Resources in terms of section 48(1)(b) of NEMPAA to conduct commercial mining in the Mabola Protected Environment had not been obtained, or sought (as far as the Appellants can establish); that the mining right is in respect of properties that: 87.3.1.are classified as of ?irreplaceable? biodiversity value in the terrestrial biodiversity assessment (terrestrial assessment) in the Mpumalanga Biodiversity Conservation Plan of 2006; 87.3.2.form part of the Wakkerstroom/Luneburg Grasslands Threatened Ecosystem, listed as an endangered ecosystem in the National List of Ecosystems that are Threatened and in Need of Protection published in terms of the National Environmental Management: Biodiversity Act, No. 10 of 2004 36 . . gas 87.3.3.fal within a National Freshwater Ecosystem Priority Area and a Strategic Water Source Area, determined by the South African National Biodiversity Institute as part of the National Freshwater Ecosystem Project, funded by the Water Research Commission, the Council for Scientific and Industrial Research SANBI, the Department of Water Affairs (now the Department of Water and Sanitation) and 87.3.4.are identi?ed in the National Protected Areas Expansion Strategy (2008) as an area that requires urgent legal protection; 87.3.5.that, in 2013, a comprehensive application was submitted by the Mpumalanga Tourism and Parks Agency at the invitation of the Regional Manager for Mpumalanga, to the Minister of Mineral Resources in terms of section 49 of the MPRDA to declare the Wakkerstroom Wetland Area as an area in which mining is prohibited; 87.3.6.that the Minister of Mineral Resources advised the National Council of Provinces in May 2012 that steps have been taken to prohibit mining in Wakkerstroom; 87.3.7. the express objection to the granting of the right by the Department of Water and Sanitation; 87.3.8. the express objection to the granting of the right by the 87.3.9. the rejection by the Department of Environmental Affairs of final environmental impact assessment report (EIAR) in its first application 37 aloe for an environmental authorisation (AAV has since submitted a second application for an environmental authorisation to and 87.3.10. ongoing and repeated objections from civil society organisations, including members of the multi?stakeholder Grassland Programme such as WWF South Africa and BirdLife South Africa. 88. The mining right was granted subject to a number of conditions pertaining to the environment, which conditions are unlawful, vague and unenforceable. 89. Furthermore, granting the mining right contravenes several National Environmental Management Principles (NEMPs) arising from section 2 of the National Evnironmental Management Act, 1998 (NEMA). In terms of section 2(b) of NEMPs ?serve as guidelines by reference to which any organ of state must exercise any function when taking any decision in terms of or any statutory provision concerning the protection of the environment.? The NEMPs could not have been considered by the DMR when it took its decision to grant a mining right to AAV. The following NEMPs are of particular importance to this decision: 89.1. Sustainable development requires the consideration of all relevant factors including the following:25 89.1.1. That the disturbance of ecosystem and loss of biological diversity are avoided, or, where they cannot be altogether avoided, are minimised and remedied;25 25 Section of NEMA. 25 Section of NEMA. 38 Ml, an 89.1.2. That pollution and degradation of the environment are avoided, or, where they cannot be altogether avoided, are minimised and remedied;27 and 89.1.3. that a risk-averse and cautious approach is applied, which takes into account the current knowledge about the consequences of decisions and actions;28 89.2. the social, economic and environmental impacts of the activities, including disadvantages and benefits, must be considered, assessed and evaluated, and decisions must be appropriate in the light of such consideration and assessment;29 89.3. decisions must be taken in an open and transparent manner, and access to information must be provided in accordance with the law;30 89.4. there must be intergovernmental co-ordination and harmonisation of policies, legislation and actions relating to the environment;31 89.5. global and international responsibilities relating to the environment must be discharged in the national interest;32 27 Section of NEMA. 2? Section 2(4)(a)(vii) of NEMA. 29 Section of NEMA. 3? Section 2(4)k) of NEMA 3' Section of NEMA. 3'2 Section of NEMA. 80% 89.6. the environment is held in public trust for the people, the beneficial use of environmental resources must serve the public interest and the environment must be protected as the people?s common heritage;33 and 89.7. sensitive, vulnerable, highly dynamic or stressed ecosystems such as coastal shores, estuaries, wetlands, and similar systems require attention in management and planning procedures, especially where they are subject to significant human resource usage and development pressure.34 90. It is also in conflict with NEMPAA and the Constitutional duty to promote conservation through reasonable legislative and other measures in a number of respects:- 90.1. the grant of the mining right completely undermines the declaration of the Mabola Protected Environment in terms of NEMPAA. The purposes of the declaration of the Mabola Protected Environment will not be able to be achieved if coal mining takes place in the Mabola Protected Environment; 90.2. the written permission of the Minister of Environmental Affairs and Mineral Resources have not been obtained in terms of NEMPAA for the grant of the mining right; and 90.3. it will result in protected area expansion targets not being met. 91. The grant of the mining right is also in conflict with stated national policy in relation to mining in Mpumalanga. The Minister of Mineral Resources and the DMR have stated 33 Section of NEMA. 3? Section of NEMA. 40 if 92. 93. 80? publicly (as outlined in paragraphs 52, 54 and 55 above) that steps have been taken to prohibit mining in the highly environmentain sensitive area of Mpumalanga. On the available information placed before the DMR, the requirement in section 23(1)(d) of the MPRDA that a mining right will only be granted if the mining will not result in unacceptable pollution, ecological degradation or damage to the environment could not possibly have been met. In the light of all the applicable environmental legislative provisions, government policies and adopted plans in respect of the Mabola Protected Environment, mining policy with regard to this area, and the environmental factors outlined above, the grant of the mining right is unlawful, irrational and unreasonable and relevant considerations were clearly not taken into account. APPLICATION FOR THE SUSPENSION OF THE MINING RIGHT 94. 95. 96. 97. An appeal in terms of section 96(1) ofthe MPRDA does not suspend the decision being appealed against. Section 96(2) of the MPRDA vests the power in the appeal authority to suspend such a decision pending the outcome of the appeal. The Appellants hereby formally lodge an application for the suspension of mining right pending the outcome of the appeal. To the extent necessary, the contents of the appeal (together with the annexures) are expressly incorporated into this application for the suspension of mining right. 41 98. 99. 100. 101. (Ala The evidence which was before the DMR when it granted mining right overwhelmingly establishes that the properties over which the mining right has been granted are extremely environmentally sensitive and irreplaceable. The properties fall within the Mabola Protected Environment declared as such under NEMPAA and all but two of them fall within the Wakkerstroom Wet Grasslands Area which is the subject of a pending application in terms of section 49 of the MPRDA to prohibit mining in that area. When the mining right was granted to AAV, a number of conditions were imposed which reflect that the DMR acknowledges that the area is environmentally sensitive (as reflected in annexure There will be no irreparable harm to AAV if the mining right is suspended pending the outcome of the appeal. Any harm which it may suffer would be purely ?nancial. In contrast, if AAV commences mining in this extremely environmentally sensitive area pending the outcome of the appeal, there will be irreparable harm and damage. The area is truly unique, irreplaceable and threatened. CONCLUSION 102. In the circumstances, the grant of the mining right should be set aside in its entirety and suspended pending the outcome of the appeal. 42 wk! all SIGNED at CAPE TOWN on this the 30TH day of MARCH 2015 for and on behalf of the appellants CENTRE FOR ENVIRONMENTAL RIGHTS Attorneys for the appellants Second Floor, Springfield Studios T0: HONOURABLE MININSTER NGOAKO RAMATLHODI MINISTER OF MINERAL RESOURCES Block 2C, 4th Floor Trevenna Campus Corner of Francis Baard and Meintjies Streets Sunnyside Pretoria Attention: Messrs Pieter Alberts and Johan Nieman Legal services Department of Mineral Resources By courier AND TO: AND TO: DIRECTOR-GENERAL Department of Mineral Resources Block ZC, 4th Floor Trevenna Campus Corner of Francis Baard and Meintjies Streets Sunnyside Pretoria Reference: Dr Thibedi Ramontja By courier ATHA-AFRICA VENTURES (PTY) LTD 8?1 Floor, Sinosteel Plaza 159 Rivonia Road Sandton Reference: Mr Praveer Tripathi By courier 43 1 Scott Road Observatory Cape Town 7925 Tel: 021 447 1647 Fax: 086 730 9098 Email: chors?eld?cerorqza Ref: Catherine Horsfield . 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Hiatnry 53 of a1 Eifec?ve Dam Change Typo $550?;ng gm gm 0mm; Memo a History 59 of 81 Effective Date 1215?} i I r11" W. :2 ?13?3 6 ANGEEB 3 Change"; ?3?pr (3 .- - Man I History 66 (if 81 Eiffemive Bate Change Type; W10 LEAEEL US Histary 61 sf Effective Date 13:93,! Change Type [ii-30TH ANS Mama mammam? amazgwu ?-?isiory $2 of 83 Effactive Date 3.526% Change Type 5 Meme ?iaqsaaeasma'i'w; (as) History of 81 E?active Dam (mange Typo Mun-In 64 9f 31 Effective Date Chang-e T'ygge Memo Histary $5 of 81 Effectim Dam Change i'ym Memo History 68 of 81 Effemiwa Data Change Type Memo story 57 at 31 un'mmva 5313 Change Type Mama History 68 of 81 Elfacliva Data Change Type Mam Himary 89 63" 31 Effamive Data Change Type Memo Histary 70 of 81 Eric-mixes Data Change Type Magma History of 81 Jr?ec?ive Data Change Type Mame 7'2 01" 31 Effeclnre Data Change 'Iype Memo Extent 73 5f Efiemwe Date: Change Eypa Mama ?3333. KRNG SESWCE ?353 93035203? 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SONTENTS INHOUD ?a Page (332930 No. No GENERAL 13 National Environmental Management: Proiected Areas Act {57;2083}: Bealar??on 0f the Qhrissiesmser Protected . 2a m: Declara?en of Elm Maimla Pratmxed Enuirmmeni . . . . 9 225.1 Deaczlam?an a? an 231% as part at aha Preteswd . . ?11 22:51 cm 1 Eleciamtim 0! {he {afeikw Nature Reserve . ?33 2251 .523 (in; {Eeclamt?en mm?awe Frust Pra?actgd Emir/3:1; . . . . .. ?35 T21.5 gazeua'is 5:150 frag uruiwe alm.gp_wonline.qg._z_a 22 JANUAREE 20?? 13251 3 GENERAL. - - .. 19 OF 2814 MPQMALANGA AND PARKS AGENCY OF THE PROTECTED ENVERONMENT 3N TERMS 43F m5 WATSONAL ENVERDNMENTAL MANAGEMENT: PROTECTED AREAS 24393 (ACT no. 5? of 2:263; (AS AMENDEB) Nance is hereby given by the Member of the Executive Cauncii (MEG) for the Department at Economic Development, Environment and Tourism in Mpumaianga Province. Mrs. Y.N. Phosa. in terms of Section 28 and of the National Environmental Management: Protected Areas Act. 2003 (Act Not 57 cf 2003) (as amended) of the declaration of the PROTECTED ENVERONMENT, losated in the Chief Albert Luthuii Local Municipality and the Msukaiigwa Local Municipality an the prcperties: the bnundarias {if which are as indicated in the Senedule nefeto. The purpose for the declaration of the Chrissiesmeer Protected Environment is as in?ows: - To enable the nwners of the land to take collective action to consente- bindiversity an their iand and to geek legal renngnitinn therefor Tn protect the area if the area is sensitive to deveiopment due ti: its biological diversii", natural characteristics. scenic: and iandscape value and the previsinn inf environmeniai glands and gamma a To protest a specific ecosystem 4? To engine that the use at natural resources in the area is sustainable The Chrissienmear Pratecte? Landewness Assnciation isi in terms m? Sectinn 35 {his assigning as the Management Aliment}; at ins Chriss?esmeef Prniected Environment. SCHEDULE: Bess??ian at the antissiesmgz?zr Pratected Environment ?3rcaperty Sessriptian Size "i'?tie deed number fr-?arm Name Pin ?igpzeidoom 33 n' 355.4394 ?iD 383mm fiippelaoom 33 it" 4 22214159 ti ,aagpeisoom 32% it? 932 297 4131 75973053 gas I 2 i $131753 '?28381Kt?995 Bellevue 76 IT I 694.2334 meaaunaa? 'aeise?lig?n? $3 710719.2909 4 Balievue ?3?5 it? 2, 2252,?05? T4476511995 ?T?Jzisng'as at" i @5964 93f: nn aatnweil 30 a M21315 1 i3??846? 3236? 5 55.5532 . Teaagangmm Roma-lien 90 IT 353333545 ?ac?h?e?li?d 21?? if: 235.93% tiazmaiznm {beam ?29396? i {inalbank IT :4 ?3259 I Taiagig??i' eag??s'i I T?e??tsa? T'rit'. gaz?ila is also available free entire 4 {3 . EXTRAEIJR 22 JANUARY 2716141 Bmv?wgamhag ?57 FT 3 E11115 1, 3 193.5722 Tmao?afzsosa briEfEnth .1 151.1153 T2371512005 ?Ejriefon?ein 114 IT 111131393 1'1039412005 Driefonte?11 114 IT 11 3.2281 "1111380412908 Uriefonte?n 114 IT 5 251911133 T5224212on7 Briefcniein 114 R12 547.963?? T12182811999 [Eriefaniein ?114 8 251.7619 Driefan?tein 114 1? 170.5233 712172171999 712132311999 Driefontein 114 i? 1 251.7533 T1 G1 52511 995 Driefomean 114 IT 9 31.3191 T131524I1995 Dr?efante?n 114 1T 290.5512 112182711998 1 Edemale 11m 1T RH I 520.9863 T194741209a E1andsfon1e1n 3411 2 i 59.93.23 11922311955 "Eaimzew 62 11 $111 524.3504 T529511 8180 Fairview 5211 2 342.5123 11129511980 Faimiew 62 ET FE I 113034255 ?15251912306 Ftarence 781T 2 5 185.3685 "12349611989 Florence 73 IT 3 1 454.6933 1?1 I Florenca 73 IT a 428.244 I 3:4 139.83% ?113959119311 13151131199 ?8 11' :7 2:32.856 Florence 721 IT 5: 125.2923 164935111381 i Fiarence 7111 IT 1 519.1944 1539931111513 Gemabokh?uweg a? 11' 17111 i 351 5592' T3 ?1 55129112 I 3? 1T 11112 i 1211.951? mama/19133 131111? 4 101.2525 ma? 511988 1215 "(129.13% 534%?2552' G?msbekheuwal 8517' 5: 342.5435 1 ?emsnukheuwel s7 11' 7 5135.542 1.17 IT 8 139.4212 755' gamma Gemsbokneuwei a? 11* a 11.311.351.11 "Ea?31111111 .as GEEnEFo'kneuweI a? IT 517.507 7134711112116 _Gigntyan 54 IT 7 r? 331243;: 124250115195 G??ntyan 64 11' {a 31.3 I 11425311gaa 11?? R51 i 205.3332 (?12311917111292 a?er?h $31? 2 ?fi?iaa 52233321121811 ?a??h?nga'z? 4 32113852 {722333.171?ae (311911211311 54 1? '3 204.1% {'13 2313 24511 1933132 i "Egaaw??a?' $223072th 113:1 11? 5 11215833 723915121122 Guedehnop 1133 IT 7 252.12% 73812111338 TGEe?ahmp 1133 11 2 197.3324 181911121112 1.51.3515 I This- gamut: 5-3 51250 avaIlubis fir-B chime at PROVENSEQLE 22 JANUAHEE 2131-12 5 1305211011000 103 3 7330 3000 T454512009 Goeu?ehuop 103 11? 13 352 534 T310012012 73533533371011 3 I 505.3530 1 {3051330000 1133!?? RM 540.0482 Goedvenvach?m IT 159,744 "Goedvemachting 31 IT 14 3139:2001 1301503104 IT 1 1130,0109 T130312009 1121111111011 39 IT 317.545 T11531011030 21301111011 99 IT 912 172.1630 19133120013 Hammon 39 IT a 403.2130 T013712008 1131111211 33 IT 1 533.3005 "113312712002 ?Hamar 53 IT 1 i T115540120013 Iona 77 IT 1 R13 254.3000 T3585GIZDUS Iona 7? 3 254.5007 T1 5349120013 'thmf'qh 3 - ?7234.309? T1565112003 Iona 77 IT 5 I 500.1420 T1334312003 Iona 171T R11 . 203.3209 T313412003 Iona "f7 IT 3 234.0055 man/1:201:10 1003 37 IT 4 149.3345 3010412003 . Joubertsfontein 131:?. 11" 1-311 339.7572 ?01333411334 30013003101111.2111 135 IT 323.2534 T23211I1330 "12131011111100 35 IT 5 .11 1.1173 . "12330111001 - Kelv?nside 351T R513 113.3200 mam/1033 Kewinside 05 IT 11 1?1.?538 323110111301 L?elvinSIde 05 1? 1 :2 4.2.3230 T3935812000 I 1111031111110 1T 1 3 131.3033 T5403412002 117110330110 33 IT ?Rrs I 131.337? T11301012003 a 232.5231 T5408412002 1 10 1 33.3353 i Knockdhu 1T 11 I 171.3133 T1 13812133133 52:13:;de .33 IT 14 227 55313 333014123003 knockdhu 33 ET 3211 41,3233 T1603441206T Lineman 03 1T 12 104.0532 T16034412004 .. 33102110110 a? 43,430? T3331512003 i 3? 110.1131 T03315rz003 i Knockdhu 33 IT 333 I 131.203 E11131:th 33 IT 13 230.0330 Tess-15.12003 bake 3321112501131 102 13 - :1 355.3337 31343412003 1 Lake Banagher 11321? I 5 342.6113 E?aanagher 262 IT 342,506.48 T213012013 Lake 8331ag?1e1'102 IT 3 . 513.9201 TEE-0.2013 I Lake aamgm 1T 3 I 342,011.21 T213012013 Lake 011113313 IT 323.0513 T3133312002 "may I 1.21:3 Chrissie 3ng 3 I 223.0510 T3132512002 [18:13 211113313 02 IT "531323121133" I?nis gazette 1'5 also 011131111015 1:011 0:111:10 at .vwnq?vl NC). 22251 PROVENCEAL GAZETTE JANUARY 2014 9 1 95.9532 71292972971 61195593511? 523.4482 15991519999217: jam?4 171.71%? H?w Lake 011119919 92 IT 9 229.9519 11995272999 - Lake Chrissie 92 R79 114.9244 11595272999 7.911591371791679 1T "m 9 54.5529 ?19999959?? 191919111911 79 IT 5 949.747 992 :1 Lellefontein 79 17 9' 997.3921 71599911993 1 9111999999 195 11? 9 94.9759 12977572995 1 Lettieskaus 195 IT 1 43.9974 719192711999 La?ieskeus 195 IT 3 229.9959 Let?eskaus 195 17 4 197 .2999 72939271997 1 [99199999919911 9 392.9931 "12%?97271?997 I 191119914999 119:1; 9 1494.479 T9999572993 ?j Liefgekozen 11917 9 3 152.4242 7991211994 11419119an 119 IT 9 999.9551 714299972994 Liliieburn 74 17 792 129.477 7999571991 Lilliabum 74 IT 795 1 241.1299 1939571991 Lillieburn 74 IT 5 129.4912 T9595119a1 74 17 19 942.9119 7999971991 mfifebum 74 IT 991 199.9974 7939511991 4 11959191991? 2 497.1997 75714171997 1 5.999191 99 1? 1 5 519.9157 71995272999 1 Magdalenasmaer 115 1? RM 39.5534 1 .1975 "1214.4215? 1 77999472999 ??agdalenasmeer 1?93 5 193.6389 1 77060412056 315993139395129119 IT "32757917 177999412995 1 Magdalenasmeer 119 1 3 1 313.1674 71232511995 1 Magdalenasrneet 115 1 318.1813 4' ?2152711999 1 I?Magaalenasmear 119 IT .974 I 171.9952 115549572992 1 1 Magda1enasmaer 1 113 11? 8 65.56% W??w #1 1 Manifontein 35 IT 4 329.9993 71413771 999 1 Mooifbntein 35 IT 791 279.9755 711999112995 1 14 . 295.9974 17999472999 1 W119 157.7955? "w?aamlz?aT: I 1499199199971 117 IT 791 532.9771 T155492I2992 17.997999199971179 2 399.9531 "5593?257191?1?Tm?1 1915999999759 913 499.599??" 114299372995 5 #1791979 "735549372993 1 95?" "1771f" 7771534927299sz 752mm 1'7 17 9 515.932 1995999959911? 9911"? ?91?mr 119?49-75999 NEc?i??EEe?t'a??nTm 9 "19977729997? . [31.135999999111991: 11791112 . A _h:4911:9771974__ 1 1.199119949911199 17 9 1 479.114 79392271979 1 "Nooitgedacmw IT 4 1 479.1112 13392171973 1 19911911999: 99 IT :1 1 519.9295 7599172999 A Tlu's 9929119 is 9199 99999th I199 9911719 91% W7 9 2,47 22 JANUAREE 20151 ND. 29.5 1 7 13151555551 55 IT 1 5 755.132 55 IT . 1 55.5532 Simonsdal 55 IT 2 171.3054 T5355511590 Simonsdai 55 IT 4 255.5595 "5?e15 135 IT 17 355.210? T10152511555 1571.023? 51111155515 1 131T 0 255.4555 1 510-117? 515.1253 T2538211997 Smits?eld 150 1T 4 197.4335 T253521 597 ?Emizs?ead 135 IT 15 515.1234 997 Smi?rs?eld 130 IT 5 345.1774 T101527i1995 361?? 11 184.1544 Smite?eltf?? 1T 15 194.2555 T1 1125511995 Smits?eid 130 IT 525 175.5295 T101524I1595 Tevreden 58 IT 8 137.859 ?3912712002 I Teweden 55 IT 3 T10129912004 Teureden 56 IT Fm I 417.5255 Tevreden 55 IT 1215 525.255 "Taxman 5_6_ IT 5 425.2731 T1251 111575 The Pearl 75 IT 1 1 505.5459 T60591f1997 . The peari 75 IT 2 3 507.551 T152512I2555 The 5555 75 IT 3 15555146 T53101I1557 1 The Pearl 75 IT 555.4239 T4535011557 ?1 5 Vryheid 59 IT 5 512.5431 T30509T15T7 . Weigelegen 113? IT 1514 3T55159 Welgelegen 10?? 111 155.2595 ?1 WeI'IeTJr?a?n 1511? ?"75 To1559i2555 - 5-21 1T 4 175 5559 1' "15155512555 Weneweden 1541?; 2 575.1455 1 T257T512055 W?ei?teweden 154 IT 3 173.5585 LT257T512555 {?ammi #17551 505.5355 1 T2554312502 gazette is aim: ava?a?ma free chime apyfauigpyp?lj?g?on ,1 2: PROWNGIAL GAZETTE EXTRAORDWARY, 22 JANUARY 2914 23 NO. 2251 PROTECTED 09:. main? . warms3:5! . 7?1" Ian-41w v; 99 1? ram #:rrslan-uur . If 1' ad" "991:: ELIE-EH '1 mm mm- i .. 3.31:? {warm-1m A 1' mm?! - -. was J'x? 9125? amna?w?hwm nah-w: - I I :nmgmu :m J- Cbzissiesmeer Frazected Environmem This gawk-a is aim ava?anle {n+2 cnilne athnaxwzg PHOVENEHALE KQERQNT, 22 JANUAWE 2331i Ni). NQTEQE 20 OF 2014 AND PARKS AGENCY QEQLARATEGN OF THE MABOLA PROTECTED 1N TERMS OF THE NATEONAL ENVIRONMENTAL MANAGEMENT: AREAS A37. 2003 (ACT NO. 5? of 2653) AMENDED) Notice is hereby given by the Member of the Executive Council for the Department of Economic Development, Environment and Tourism in Mpumalanga Province. Mrs. Y.N. Phosa. in terms of Section 28 and {bl of the National Environmental Management: ?roteoted Areas Act, 2803 [Act No. 57 of 2803) (as amended) of the declaration of the MABOLA PROTECTED ENVERONMENT, located in the Pixtey ks Seme Local Municipality on the properties, the boundaries of which are as indicated in the Schedule hereto. Tine purpose for the deotaration ot the Mahala Protected Environment is as follows; a To enable the owners of the land to take coilective action to conserve biodiversity on their land and to seek legal recognition therefor To protect the area ti the area is sensitive to deveiopment due to its biological diversity. natural characteristics. scenic and landscape value and the provision of environmental goods and services a To protect a specific ecosystem a To ensure that the use of natural resources in the area is sustainabte The Mabota Protected Environment Landowners Association is, in terms of Section 38 assigned as tine Management Authority of the Mahota Protected Environment. SCHEDULE: Bescriptlon of the Mahala taroteoted Environment lavas: Beltway; . {greatness 12% HT meanness I HL ssomst Less; t__2 HL. Bigg'lamderof Randal-trans .73 HT areas-as . Portion'l of Roodeltrans 73 HT tSi?E?f?t?] LToztion 1 of Rivterveld rs HT 1 Ti?3729l1994 151.3131 i Portion 3 or Flivier'vold r5 HT 1 77372941994 52st 1 Portion 1 of Kromhoei: ss HT W3729319921 204.3073 Woman 2 oprodekrans r3 _4 T22355ft$?9 [?emamoer of r4 lji 131.3488 ?emainder of armaments er 2:31 . magg?telvetdjm wander or Kromhoak at esc.4zcs_ ?_F'ortion a ofVaalbank ?4 HT I as 5. emigrate Hl__ tease-?20% Miser?a Remainder of Yzermvn ?35 HT TESTOEHEBA ?2136 1803? Flattestonteln 76 HT . 810 r_ rags.ng o?gkog o5 HEW . i T10761r2?12 lfg?lmof at 97s sagas; Good?noel: :24 HT i see stars {his gazette is also anal-ems tree calms at Si 10 No. 225?: PROVINCIAL GAZETTE JAN UAHY 2014 MABQLA ?Gimmdow 1 i Mpumalanga .?L??kmun - i Gucanauru - . Kwazuin Natat - ?1 ?air 1 . If", 3-999? 'w r' E3 Mam mm Emwzni garaue is mso madame Jrea anIEr-e a: WngEU?p?o. BLJITENGEXNGNE 22 2014 Nat}. 225?! NBTECE 21 05'; 2814 MPUMAMNGA PARKS AGENCY OF AN AREA AS PART car ree KWAMANDLANGAMPESE PROTECTED - ewreewem rN "reams 0? we NA'rierrAL MANAGEMENT: mores-res AREAS ACT, 2533 no. 5? ef 2-633) (AS AMENDED) Marine is hereby given by the Member of the Executive Councii (MEG) for the Beperrment of Econamic Development, Environment and Tourism in Mpumaianga Province, Ms. YN. Phase, in terms of Section 28 (1 and of the National Environmental Management Pro?ecred Areas Act, 2093 (Act No. 57 of 2093) (as amended) 0f the declaration of the areas as defined in the Schedule berets 10 be part of the existing Kwamandiangampisi Protected Environment. The purpose ?for the declaration of the Kwemendlangameiei Preiecred Environment is as foilcwe: a T0 enable the ewriers of the iand t9 ieke ceiiecrive action to conserve biedivers?ry en their iene and te seek legal recogni?en therefor Te erotect the area if the area is sensitive to deveicpmerii due :0 re eiologieei divereityg natural cherecierisiice, scenic and landscape value and rhe previeion ef envirenmen?ral geode and a To pretest epeci?c ecosystem - in ensure that fee use of natural resources in ?re area is susieinabie The Kwamandiangempiei Preiected Environment Lendewnere is in Eerme 0i Sealer: 38 (i3) as {he Management Amherizy of the Kwemandiangempiei Prereered Env?renment. Bescrip?nn of tire Expanded Kwamerzdiarigampiei Freteete? Eevirarrmeni ?re Remernder ef the farm Zaendkreel, Ne. 8?9, Siruaie? in the pixie}: ice Same Lece? Munic?peiity, Div?eien of ryipemaienga Province; in exrent 3595,2585 hectares; Titre No. Portian 1 of ihe farm Zeaee?kreei, N0. Q9, aimered in Erie Pixiey Ra Seme Lecei Munieipeiity, Divieien 01? Mpumaienge Prcv?nee; in extent 423%35 hectares; F?tle Ne. Partisan 2 0f ?he farm Zaan?rkreai Q9, Situered in fire Pixley ire Seme Leger Munieipeiityg Division e? HT. iripumelenge Province; in extent 42835335 hectares; Title N0. 4, Perrier: 4 3f the farm No. Situated in rhe Mkrrende Municipality, Division of RT: Mpume?enga Province; in exierd 687,%158 hectares; Ellie Ne. Q84. Perl?eri :2 or? are farm ?enkerheek ?r72, in the exikhenc?e Local Municipality, Sivieien cf HT, Mpemeier?rga Province; in extent 68?,gi58 heeteree; T?rie Ne. $84 yo pr This gazette is suso summits irea unline 12 No. 214251 PROVINCIAL. GAXETTE EXTRAORDINARY, 22 JANUARY 201d Kwamandlanga mpiai Protected Envimn men? I 171"" I M: Kwammdlangampisipmaalad Enviranmem I E'P'n's. gazaite is 2113:: avadahla free unime al I . ass PREVINSEALE KOERAN T. 22 JANUAREE 2014 N0. 2251 13 NOTICE 22 OF 2014 MPUMALANGA TOURJSM AND PARKS AGENCY QECLARATION OF THE TAFELKOP NATLIRE RESERVE EN TERMS OF THE NATIONAL ENWRONMENTAL MANAGEMENT: PROTECTED AREAS 2003 NO. 57 of 2903) (AS AMENDED) Notice is hereby given by the Member of the Executive Council (MEG) for the Department of Economic Development, Environment and Tourism in Mpumelanga Province, Mrs. YN. Phoss, in terms of Section 23 (1 and of the National Environmental Management: Protected Areas Act. 2003 (Act No. 57 of 2003) [as amended) of the deoieretion of the TAFELKOP NATURE RESERVE on the area defined in the Schedule hereto. The purpose at the decieretion of the Tefeikop Nature Reserve is as follews: ?Te pretest tire area if the area has significant natural features or biodiversity and is in need of iong?term protection for the maintenance of its biodiversity Mr. lzek Johannes Pringie is in terms of Section 38 (2) assigned as the Management Authority of the Tefetkop Nature Reserve. SCHEDULE: Descriptien of the Iafeikep Nature Reserve 1. Remainder ef the term TAFELKQP 128, Division of HT, Meumatenge Province; in extent: 8651188 (Eight Zero Five comma Seven One Six Eight) Hectares; Held by Titte Deed N0. to Portion 1 of the term TAFELKOP 128, Division of HT, Mpumalanga Prevince; in extent: 402.8555 (Four Zero Two comma Eight Five Five Five) Hectares; Held by title Seed Net 1700131351.!2001 fins gezrme as also. ave-iterate free cniine el IngeEgprniLnsq-zng We?, 3b 14 N9. 2251 PROVINCIAL GAZETTE 22 JANUARY 201:1 TAFELKOP NATURE RESERVE Tafeikop 126 11113 (33263:: atse available {res unline 0131 KOEHANT, 22 JANLSAREE 2014 N51 i5 NOTICE 23 OF 2014 MPUMALANGA TOURISM AND PARKS AGENCY oF THE MNDAWE TRUST PROTECTED ENVIRONMENT iN TERMS OF me MANAGEMENT: PROTECTED AREAS ACT, 2cm (ACT no. a? of 2003) (AS AMENDED) Notice is hereby given by the Member of the Executive Council (MEG) for the Department of Economic Development. Environment and Tourism in Mpumetanga Province, Mrs. Y.N. Phase. in terms of Section 28 mien-(i) and of the National Environmental Management: Protected Areas Act. 2003 (Act No. 5? of 2003) (as amended) of the declaration of the MNDAWE TRUST PROTECTED ENVIRONMENT, located in the Tnaba Chweu Local Municipality on the properties, the boundaries of which are as indicated in the Scheduie hereto. The purpose ?For the deoiaration of the Modewe Trust Protected Environment is as foiiowe: - To enable the owners of the tend to take collective action to conserve biodiversity on their land and to seek legal recognition therefor 0 To ensure that the use of natural resources in the area is soatainabie {Eaitztiie}; The Mndawe Trust is, in terms of Section 38 (2) assigned as the Management Authority of the Mndawe Trust Protected Environmen . SCHEDULE: Description of the Mndawe "trust Protected Environment I Title beam. TEES n13}? 1' Portion 2 of the farm DOORNHOEK soroivtsaon of I Monmalanga Province Poniomi the farm 50:3ivision oiJT; I T45d7?f200? 4535,2536 i?pumalarlga Province 1 Portion 4 ozone farm ??j?ivieion of JT: monomer e?t?s i . Portion a ofthe farm eeotvem ofJT; 21,4?33 .Eurnalangafrovince 50:Division of i454??i2007 I Moumatanga Province 4 I Portion it: of the farm 50:Divieion ofJT: Henrietta? I 2 Litipti?a'??j??f?i?ie_ . This gazette also availabio tree crime at w_vnv.ggwo_n_lln_e.oo. ?3 6 N0. 2251 22 JANUARY 2014 - ww QUORNHOEK 60 MN DAWE Roma T59 Emilie? {1:3 Mesa-qu Pr?ntrza? by and o'mainabie {mm the {government Printer, 303mm areal, Private ?ag >185, Pfetar?a, 00m . 1a? {@123 33-54333? ?4.511 A?so avaiiahie a? me'miai Legisiatme: Mpumalasga. Prime X1?225?i Racm 11.4. Civic (323:1er Beading, Mel S?reaz Nelsnwit, 12 Tet 3311} $2133 Gs?zdmk dam em by ?ie Seamangtraai. ??rsvaai Sak >185; Frie?vri?. ?601. TEL {012) 334-45 133445123 344559 33-44515 Oak aimkiygbaar by :3 Provinsiaie Wetgewer: Mpumaianga, Privaa?l Sax Kama: HA, Barggmenimm: Melstraai. rs?elagzamir. 120-3. Te}. 5 2133 ans gazette is. 3250 avail-?11345: frem Dnline at 2:251 .2 AWEXMQ 3 a; Mahala Protected Environment Motivation MOTIVATION FOR THE DECLARATION OF THE MABOLA PROTECTED ENVIRONMENT IN SOUTHERN MPUMALANGA IN TERMS OF THE NATIONAL ENVIRONMENTAL MANAGEMENT: PROTECTED AREAS ACT JANUARY 2013 Maboia Protected Environment Motivation TABLE OF CONTENTS Page__ Table of Contents 2 Acronyms 3 1. Purpose 4 2. Background 4-5 3. Legal Context 5-6 4. Description of the Maboia Protected Environment 6 5. Biological and Ecological Significance of the Mabola 7 Protected Environment 5.1 Terrestrial Biodiversity Signi?cance 7-8 5.2 Aquatic Biodiversity Signi?cance 9 5.3 Mpumalanga Protected Area Expansion Strategy 10 5.4 Listed and Threatened Ecosystems 11 6 Consultation and Public Participation 12 7 Reasons for Declaration as a Protected Environment 13 8 Conclusion 13 References 14 Appendix Description of Properties 15 Appendix 2: MBCP Query 16 :1 Wi" Mabota Protected Environment Motivation ACRONYM DEFINITION DEA Department of Environmental Affairs (formerly the Department of Environmental Affairs and Tourism DEAT Department of Environmental Affairs and Tourism (former department now known as the Department of Environmental Affairs) DEDET Department of Economic Development, Environment and Tourism Integrated Development Plan MBCP Mpumalanga Biodiversity Conservation Plan MEC Member of Executive Council responsible for protected areas an the case of Mpumalanga this is the MEG for the Department of Economic Development, Environment and Tourism) MPAES Mpumatanga Protected Area Expansion Strategy MTPA Mpumalanga Tourism and Parks Agency National Environmental Management: Biodiversity Act (10 of 2004) National Environmental Management: Protected Areas Act (57 of 2003) NPAES National Protected Area Expansion Strategy SANBI South African National Biodiversity Institute (a parastatal of DEA) WWF-SA World Wide Fund for Nature - South Africa *7 Hr~ IN. Motivation a 2 Mabola Protected Environment 1. Purpose The National Environmental Management: Protected Areas Act, 2003 (Act No. 57 of 2003) ("the Act") makes provision for the declaration of various types of protected areas. one of which is a Protected Environmentits aims the protection and conservation of ecologically viable areas representative of South Africa?s biological diversity and its natural landscapes and seascapes. The following motivation provides supporting information and documentation for the declaration of the Mabola Protected Environment, located within the South-Eastern part of the Mpumalanga Province within the Pixley ka Seme Local municipality. 2. Background The National Protected Area Expansion Strategy DEAT. 2008) identi?es the area of the preposed Mabola Protected Environment as part of a larger area identi?ed for protected area expansion within the grassland biome. The area has also been identified within the Mpumalanga Protected Area Expansion Strategy (MTPA, 2009) as an important zone for protected area expansion and contains vast un-fragmented grasslands and irreplaceable biodiversity features in terms of the Mpumalanga Biodiversity Conservation Plan (MTPA, 2006). The area is also a critically important and high yielding water catchment. Most of the properties are close or adjacent to the declared KwaMandlangampisi Protected Environment (KPE) and are strategically positioned to link and form a corridor with other properties to the KPE. The vision is to develop the area for eco-tourism development in line with the objectives contained within the IDP of the Pixley ka Seme Local Municipality. The envisaged bene?ts of a broader expansion of protected areas within this region are a well managed natural environment and livestock farming sector and economic development and job creation through tourism, wildlife enterprises and rural recreational developments. The proposed Protected Environment forms part of a broader project of the National Grasslands Programme, under the aUSpices of the South African National Biodiversity Institute (SANBI) and the Department of Environmental Affairs (DEA). The objectives of the programme are to demonstrate the mainstreaming of biodiversity conservation into the agriculture sector by securing the conservation of the area and by promoting agricultural and other land use practices that are compatible with biodiversity conservation- The ultimate objective is to ensure that grasslands conservation is ensured whilst livelihoods from livestock farming and tourism are maintained. EVA Mabola Protected Environment Motivation All of the major environmental NGO's are actively working within the Wakkerstroom region on account of the biodiversity significance of this area. This includes Birdlife South Africa and the Endangered Wildlife Trust. The Mpumalanga Tourism and Parks Agency (MTPA) together with has undertaken biodiversity site assessments for all of the properties proposed for inclusion within the Mabola Protected Environment in order to declare these properties as a Protected Environment in terms of the Act. Signi?cant progress has been made in this regard and the landowners of these properties have consented in writing on the allocated category-Protected Environment. The MTPA, together with its partners and have over the previous year been in the process of engaging landowners within the proposed Mabola Protected Environment in order to prepare the necessary documentation for the declaration of the Protected Environment. Recently, various prospecting permits have been granted within the area for torbanite on Kromhcek and Goedgevonden properties by Kangra and Bongani Mining. A mining right has also been granted around 2006 in Loskop property to Roder Coal Mining, so the lower lying area (mining area) will be excluded from the Protected Environment. Prospecting has been done 30 40 years ago on some of the properties. Mining for torbanite will have serious consequences for the sustainability of the current livestock farming enterprises, water resources and sensitive wetlands within the area. as well as the current ace-tourism activities and the proposed nature conservation land use. The MTPA has also met on various occasions with the Department of Minerals to request the rescinding of the respective prospecting permits on these areas in order to proceed with the declaration of the protected environment. 3. Legal Context Section 28 (1) of the Protected Areas Act (Act 57 of 2003) (hereafter referred to as the Act) provides for the declaration of a de?ned area as a Protected Environment in order to: ?to enable owners of land to take collective action to conserve biodiversity in their land and to seek legal recognition (8.28 (2) ?to ensure that the use of natural resources in the area is sustainable (8.28 (2) The area de?ned in this motivation for declaration as a Protected Environment has been identi?ed by the Mpumalanga Tourism and Parks Agency (MTPA) for declaration as a Protected Environment in terms of Section 28 of the Act. The Minister or MEC may by Notice in the Gazette declare any area speci?ed in the Notice as a Protected Environment (8 28 (1) Mabota Protected Environment A Motivation A Notice to declare an area as a Protected Environment in respect of private land may be issued if the owner has requested or consented to a declaration as contemplated in terms of the act (8 28 The MEG must also give the owner notice in writing in terms of Section 33 of the Act of the intention to declare the area a Protected Environment and must provide for a period of representations or objections within a prescribed period of the intended declaration. 4. Description of the Mabola Protected Environment The Mabola Protected Environment is located within Southern Mpumalanga; primarily within the Pixley ka Seme local municipality (Figure 1).The Northern boundary is located to the north of the 543 between Piet Retief and Wakkerstroom. The southern boundary is the Mpumalanga - KZN provincial boundary. The proposed Protected Environment comprises of 22 properties of a total size of 8 772 hectares. The properties proposed for inclusion within the Protected Environment are described in Appendix 1. Figure 1: Location of the Mabola Protected Environment LOCATION: MABOLA PROTECTED ENVIRONMENT . J. 1; II- .I Hi?? if f: I r. err" A a 1_ an? ?itf? .1. . If 3.'etvanclalliatuteRewtves I I . A Maboia Protected Environment A Motivation 5. Biodiversity and Ecological Significance of the Mabola Protected Environment A broad view of southern Mpumalanga shows that it is widely recognised as the site of some of the most sensitive and unique biodiversity in the country. The area is acknowledged as having high biodiversity "irreplaceable within the Mpumalanga Biodiversity Conservation Plan. The National Spatial Biodiversity Assessment (Driver et. al. 2005) also identi?es the area as important for biodiversity conservation and the National Protected Areas Expansion Strategy (SANBI DEAT 2008) as well as the Mpumalanga Protected Area Expansion Strategy (MTPA. 2009) identifies the area as important for protected area expansion on account of the largely un- fragmented and intact grassland ecosystem. 5.1 Terrestrial Biodiversity significance The properties within the proposed Protected Environment are categorised as 22% Irreplaceable, 24% Highly Signi?cant and about 40% as Important and Necessary within the Mpumalanga Biodiversity Conservation Plan (?gure 2). This implies that quanti?able targets for the conservation of specific terrestrial biodiversity features for the province cannot be met within any other land other than within the protected environment. The key biodiversity features driving the high irreplaceability of the area are due to the presence of threatened species, the summit escarpment, large montane grassland patch, important forest patches, critical water sub-catchments and an expansion of existing formal protected areas within the region, namely the KwaMandlangampisi Protected Environment and the Paardeplaats Nature Reserve. The area is important in meeting targets for various biodiversity features within the MBCP (Appendix 2). The proposed protected environment will significantly conserve two important vegetation types, namely the Wakkerstroom montane grasslands and Paulpietersburg moist grassland. both of which are poorly represented in protected areas. Species of conservation concern occurring within the area include all three species of cranes occurring in South Africa, namely the Blue Crane (Anthropoides paradiseus), the Wattled Crane (Grus caruncuiatus) and the Grey Crowned Crane (Baiearr?ca reguiorum). The Wattled Crane is classi?ed as endangered and the Blue Crane is endemic to South Africa. A large and viable population of Oribi (Ourebr'a ouribr') also occurs on these properties. Maboia Protected Environment Motivation The properties contribute the following towards conservation targets within the Mpumaianga Biodiversity Conservation Plan: Current% Proportion of Target of Target Name Target (ha) Protected Protected Status Hectares Northern KZN Forest 2054 206.092 Poorly Protected 59 2.88 Wakkerstroom Montana Grassland 60839 2845.101 Hardly Protected 4917 8.08 Eastern Highveld Grassland 298223 2065.088 Hardly Protected 115 0.038 Paulpietersburg Moist Grassland 30924 975.835 Hardly Protected 2711 8.77 Figure 2: Terrestrial Biodiversity significance of the Mabola Protected Environment (Source: MTPA, 2006) MBCP: MABOLA PROTECTED ENVIRONMENT . u? I ?3 I. 'M?rf't?l 'i . dd? 'TariFf, tholn Protected gag; KwsMandlangampisi Protected ASSESSMENT - 1 - Holeoietl - 2? Irrephoaable - 3- Highly Signi??nl ff}; 31- important it. rlacamry 5 - Least Concern 8- No Natural Habital Ramining Gills-b Maboia Protected Environment Motivation 5.2 Aquatic Biodiversity Signi?cance The aquatic biodiversity signi?cance of these properties includes some areas which are 84% irreplaceable and mostly highly signi?cant according to the MBCP (figure 3). This is due to the fact that the aquatic biodiversity targets have been selected in healthy sub-catchments of which this area quali?es. The area is also identified as important for water yield within the larger primary water catchment and as a freshwater ecosystem priority area. Morch mhs??lnl . is: HAHFEPA Elam FM mm Ml haunt-1929:: ima- Ian-urn" anli?m?runu NATIONA nit-an; trial-5391135; mans a .L ?ttiI-Iap-nh-a?-ww Inn-mun..- Dag-mm-? Inn-Alumna: .. . .. .. :l?t 2.5-2 3 Figure 3: National Freshwater Ecosystem Priority Areas of Mabola Protected Environment (Source: WRC, 2011) .l 5.3 The properties within the Mabola Protected Environment are identi?ed as mainly priority 1 and priority 2 areas for protected area expansion within the Mpumalanga Protected Area Expansion Strategy (?gure 4). biodiversity signi?cance of the area for the province in terms of the MBCP and the priorities for protected area expansion within the National Protected Area Expansion Strategy. Figure 4: Priority for protected area expansion of the Mabola Protected Environment (Source: MTPA, 2009) MPAES: MABOLA PROTECTED ENVIRONMENT Mabola Protected Environment Motivation Mpumalanga Protected Area Expansion Strategy KZN These categories re?ect the i I In i. . ature Reserves Mbola Protected Envlronmenl KwaMandIanga mpisl Protected Environment MFA ES MA ME MPAE - MPAESJJ PASS :3 ?Paris The relative proportion of the proposed PE towards Protected Area Expansion targets as per the MPAES is as follows: Proportion of Total Priority Name Hectares PE MPAES NPAES 4808 55 MPAES 3703 43 NPAES 13 1 -10- Tram} Mabola Protected Environment Motivation 5.4 Listed and Threatened Ecosystems Section 51 of the National Environmental Management: Biodiversity Act (Act 10 of 2004) provides for the protection of ecosystems that are threatened or in need of protection to ensure the maintenance of their ecological integrity. In terms of Section 52 of the the Minister of DEA may publish in the gazette a national list of ecosystems that are threatened and in need of protection. The Mabola Protected Environment falls within an area listed in terms of Section 52 of NEM: BA as an endangered ecosystem (The WakkerstroomlLuneburg Grasslands Threatened Ecosystem), thus being an ecosystem that has undergone degradation of ecological structure, function or composition as a result of human intervention, although not critically endangered. The implications for development within these listed ecosystems are that more rigid measures are applied in order to receive environmental authorisations for specific development activities within the listed ecosystem. From this perspective the Mabola Protected Environment will afford additional protection for this endangered ecosystem. Figure 5: Locality of Mabola Protected Environment in relation to listed threatened ecosystems (DEA, 2011) Protected Envirmmem - Provincial Nana's Reserves Mabola Prolecled Environment threatened_ecosystemz2010 all ulhervalues? STATU -CR )1 .11- Mabola Protected Environment Motivation 6. Consultation and Public Participation To date all of the properties within the proposed Mabola Protected Environment have had on site biodiversity assessments in order to determine the conservation status and management issues to be addressed. All of the properties meet the requirements of the for declaration as a Protected Environment. Landowners have been consulted and engaged extensively on the process of the biodiversity assessments conducted on the various properties and in developing good management practices within the area. All landowners within the proposed Mabola Protected Environment have provided written consents to have the respective properties declared as a Protected Environment. The Pixley ka Seme Local Municipality is represented on the Luneburg- Wakkerstroom Agriculture and Conservation Project Task Team and the municipality is in support of the project. The Pixley ka Seme Local Municipality, in particular the Manager, has been consulted on various occasions regarding the intention to declare the Protected Environment. Further consultation is to be undertaken as part of the process as required in terms of the The MTPA will on behalf of the MEC initiate and conclude a public participation and consultation process required by section 32 and 33 of the Act, namely: - Publish Notice of Intent to declare the PE in two national newspapers - Publish Notice of lntent to declare the PE in the government gazette. - Allow 60 days comments period - Consider all representations and objections - Consult the Minister (DEA) and all other national organs of state affected by the proposed declaration - Consult the Pixley ka Seme Local Municipality. - Consult all provincial organs of state affected by the proposed declaration. - Consult any lawful occupier with a right in land in any part of the area affected. All representations and or objections to the proposed Mabola Protected Environment will be dealt with in accordance with the Act in the prescribed manner and will be submitted to the MEC for consideration. -12- ago rr?I' Maboia Protected Environment Motivation References 61) C) d) Driver. A, Maze, K, Rouget, M, Lombard, AT. Nel, J, Turpie, JK. Cowling, RM, Desmet. P, Goodman, P, Harris, J. Jones, Z, Revers, B, Sink. 8: Strauss, T. (2005). National Spatial Biodiversity Assessment 2004: Priorities for Biodiversity Conservation in South Africa. Strelftzia 17. SANBI. Pretoria. Department of Environmental Affairs. Government Notice. Republic of South Africa (2011). National Environmental Biodiversity Act (10 of 2004): National list of ecosystems that are threatened and in need of protection. Mpumalanga Tourism and Parks Agency (2006). Mpumalanga Biodiversity Conservation Plan. Unpublished Report, Mpumalanga Tourism and Parks Agency, Nelspruit. Mpumalanga Tourism and Parks Agency (2009). Mpumalanga Protected Area Expansion Strategy. Unpublished Report. Mpumalanga Tourism and Parks Agency. Neispruit. SANBI DEAT, (2008). The National Protected Area Expansion Strategy, 2008-2012. A Framework for implementation. Unpublished Report, South African National Biodiversity Institute (SANBI) and the Department of Environmental Affairs and Tourism (DEAT). Pretoria. -14- 518! Maboia Protected Environment Motivation c192 Appendix 1: Description of properties of the proposed Mabola Protected Environment Property Description Title Deed No. Owner Name Size (ha) Oskar Heinrich Tweehoek 128 HT Klingenberg 401.0126 Oskar Heinrich Rust-fontein 129 HT K i_ngenberg 550.0191 Ptn. 4 (a of 2) of Mooiplaats 112 Danie Zietsman Family HT T1 7640/2008 Trust 209.8503 Remainder of Roodekrans 73 HT 17372911994 Uys Trust 346.3515 Portion 1 of Roodekrans 73 HT T7372911994 Uys Trust 131.943 Portion 1 of Rivierveld 75 HT 994 Uys Trust 181.6131 Portion 3 of Rivierveld 75 HT T7372911994 Uys Trust 238.6201 Portion 1 of Kromhoek 93 HT 17372911994 Uys Trust 204.3073 2 of Roodekrans 73 HT T2295811969 Pierre Willian Bruwer Uys 313.3651 Remainder of Vaaibank 74 HT Pierre Willian Bruwer Uys 151.9488 Remainder of Rivierveld75 HT Pierre Willian Bruwer Uys 251.4366 2 of Rivierveld 75 HT Pierre Willian Bruwer Uys 54.7826 Remainder of Kromhoek 93 HT T25588l1975 Pierre Willian Bruwer Uys 980.4206 Ptn. 8 of Vaalbank 74 HT Pierre Willian Bruwer Uys 151.9488 Goedgevonden 95 HT T138593l2002 Pierre Willian Bruwer Uys 739.4455 1 of Yzermyn 96 HT T13859312002 Pierre Willian Bruwer Uys 193.8289 Remainder of Yzermyn 96 HT Stephanus Petrus Maian 826.1608 Platiesfontein 76 HT T20591l1974 Pierre Willian Bruwer Uys 810.0351 ptn. 4 of Loskop 105 HT T10781l2012 Oudezicht Trust 259.9675 Remainder of Loskop 105 HT T1078112012 Oudezicht Trust 259.8989 ptn. 6 of Oudehoutdraai 123 HT 978 Stephanus Petrus Malan 526.4819 Danie Zietsman Family Goudhoek 124 Ht T110274I1998 Trust 989.3195 - 15 i?J Mabola Protected Environment Motivation Appendix 2: MBCP Query for proposed 83 Mabola Protected Environment Type Selected Name Target Required available Vegetation Eastern Highveld Grassland 298223 296449 115 Vegetation Paulpletersburg Moist Grassland 30924 30020 2711 Vegetation Wakkerstroom Montane Grassland 60639 58742 4917 Vegetation Northern KZN Misltbelt Forest 2054 1854 59 Mammal villosus 1324 0 2255 Mammal Georychus oapensis (yatesi) 2394 2261 893 Bird Rudd's Lark known 47332 44571 1070 Bird Rudd's Lark modelled 161705 157847 1291 Bird Wattled Crane (feeding) 94248 66556 2753 Bird Botha's Lark - modelled 92964 92734 1960 Bird Blue Korhaan - modelled 320000 316551 7340 Bird Blue Crane (breeding) 80623 . 76696 951 Bird Blue Crane (foggingL 506120 473313 2822 Bird Grey Crowned Crane (foraging) 374696 353228 2884 Bird Southern Bald Ibis (nesting) 7561 7319 51 Bird Striped Flufttail modelled 30429 0 4837 Bird Yellowbreasted pipit (foraging) 101075 96861 2134 Bird Yellowbreasted pipit - known farm 21928 19158 796 Frog Bufo gariepensis nubicolus 480 0 648 Butter?y Aloeides merces 520 520 76 Butter?y Aloeides titei 5 4 2 Butterfly Dingana alaedeus 5 5 2 Alepidea amatymbica var. Plant amatymbica mod 2246 0 102 Plant Aloe modesta 5 3 1 Plant remotum mod 1090 0 1776 Plant Eucomis montana 15 5 2 Plant Gladiolus appendicu (wakkerstroom)mod 224 161 461 Plant Watsonia Iatifolia 5 5 3 Process Summit escarp one 61273 56695 4743 Process Important forestatches 22330 10131 56 Process Montana large grassland patch 10000 0 1464 -15- Amen *9 q, DEPARTMENT OF MINERAL RESOURCES mineral Department: Mineral Resources REPUBLIC OF SOUTH AFRICA . A DEPARTMENT OF MINERAL RESOURCES ANNUAL REPORT 2011/2012 Ms Susan Shabangu, MP Minister of Mineral Resources 1 have the honour of submitting the Annual Report of the Department of Mineral Resources for the period 1 April 2011 to 31 March 2012. Mull; Dr Thibedi Ramontja 31 May 2012 Mining employees have heeded the call to test for TB and HIV in an endeavour to improve the management of these diseases as was noted bythe number of people who tested on that day. South African Mineral Resources Administration System (SAMRAD) During April 2011 the Department launched the online mining licence application system. SAMRAD. To date well over 3 500 applications have been successfully lodged remotely through the Department's website. The system is designed to ensure transparency, reduce the margin of error and ensure a consistent systematic approach to evaluation of and decisions regarding the awarding of rights. The process of cleaning up system data aimed at migrating it into the new system has now been done. The Department is now giving priority to processing legitimate old order rights applications in the system and will ensure that conversions yield positive results. The Department will continue to search for ways to upgrade the system to ensure that South Africa remains an attractive and competitive miningjurisdiction. Integrated licensing system Afragmented regulatory and mining licensing system has long been identi?ed as one of the impediments to investments and therefore the competitiveness of the South African mining industry. The current timeframes for obtaining a mining right. water use licence and an environmental authorization are not aligned, which results in prolonged processes and unnecessary delays. As a result the DMR, and the Departments of Environment and Water Affairs are currently reviewing the regulatory framework in an effort to put in place an integrated licensing system. it is envisaged that the streamlined licensing process will ensure compliance by right holders with the various pieces of legislation. create certainty in the regulatory framework, expedite the licensing process and ultimately strengthen the constitutional imperative of security of tenure. The previous extension of the moratorium in Mpumalanga was due to the complex nature of environmental challenges in that province. lt culminated in over 41 Rights that are located in Wakkerstroom and Chrissiesmeer being identi?ed as those belonging to the category of environmentally sensitive areas and consequently action has been taken to prohibit mining within those areas. Restriction on the Allocation of Lapsed Rights At the Mining lndaba in February 2012 the Minister announced that the issue of rights that are either being revoked or are lapsing will be addressed. The announcement coincided with a notice in the Government Gazette of the previous day inviting submissions with regard to the intention to introduce a new system for the auctioning of rights. After due consideration the Minister decided to issue a proclamation in the Government Gazette to, forthwith. invite applications on revoked or lapsed rights. in accordance with rules that are aligned to the MPRDA. Litigation cases andatheir impact on transformation Whilst reaping the fruits oftransformation brought about by the MPRDA. the Department is concerned that the recent court decision with regard to certain litigation matters will have the unintended consequence of reversing the gains of transformation in the mining industry. The Department has a historic obligation to ensure that transformation and competitiveness in the sector is not compromised. Anaemia 10'25l13 Mineral Resorrces: Minister's Budget Vote Speech Published on Parliamentary Monitoring Group Parliament of South A??ica monitored Home Mineral Resources: Minister?s Budget Vote Speech a Mineral Resources: Minister's Budget Vote Speech Information Date ofBrie?ng: 10 May 2012 Summary: Minister ofthe Department ofMineral Resources gave her Speech on the 10 May 2012 Honourable Chairperson, Deputy Minister Oliph ant Honourable Fred Gena, Chairperson of the Portfolio Committee Honourable Members, May I begin by acknowledging the presence, in the public gallery, onl girl learners from disadvantaged communities. They, Honourable members, are bene?ciaries of the Ministerial programme, supported by the mining industry, who are studying at various tertiary institutions. We stand at the cusp ofa new era in South A?'ica - one which sees, so clearly now, the resurgence ofmining as a central force. lam therefore honoured to present the budget ofthe department that is responsible for a sector so critical to our country?s future. The fact is that the African National Congress has placed the mineral and energy complex right at the centre ofits socio economic and political agenda. This is an appropriately far-sighted step as the organisation and movement I represent marks its centenary, committed as it is with even more vigour to change the lives of our people forthe better. We are, indeed, living in a season ofmarking centuries! Only a few years ago, our country?s modern and large-scale mining industry itself celebrated its centenary. We were able to take pride in the progress made, despite some debilitating policies and practices rooted in history. This ofcourse reminds us ot?another century, one we noted two years ago without celebration. It began with the formation ofthe old Union of South A?ica in 1910.1t was plagued from the outset by racist policies which rejected blacks in all walks of life until the people, under President Nelson Mandela. changed the course of our history in 1994. But, over those decades, the nation inexorably grew economically despite the ravages of apartheid. We have thrown off injustice and strengthened our economy - and in doing such things we have shown our true greatness as a nation, forthe entire world to see. The resulting unity ofspirit, rooted in our diversity, is what gives us our real strength and drives us today in an advanced economy characterised by features of both the developed and underdeveloped worlds. Budget allocation for 2012/20 13 Today, we are tabling a budget ole, 169 billion for the 2012/2013 ?nancial year which represents an increase ole30 million from the previous budget of R1, 039 billion. This increase is largely earmarked for research and development in the minerals and mining industry through Mintek and the Council for Gooscience. The budget is allocated as follows: R239 million for Administration, R154 million for Mine Health and Safety, R180 million for Mineral Regulation while a further R596 million is allocated to Mineral Policy and Promotion. Included in these ?gures is an amount of R560 million allocated fortransfers and subsidies to departrrental agencies, public and private enterprises. My department will continue to manage this allocation in line with good ?nancialmanagement principles as prescribed by the Public Finance Management Act (PFMA). In the same spirit I am pleased to report that my department utilised 99.1 ofits allocated budget for the 2011/12 ?nancial year. We have developed clearly targeted action plans to address matters raised in the audit of the previous ?nancial year. In response to the call by the President with regard to tightening Supply Chain Management Practices (SCM), the department has begun reviewing its procurement policies and procedures to ensure that the acquisition of goods and services continues to be done in a manner that is fair, equitable, transparent, competitive as well as cost e?ective. worming 10125113 Mineral Resorrces:Mir1?ster?s Budget Vote Speech 5 5 Furthermore, the department has a process in place where annually all SCM practitioners sign a code of conduct. All Bid Committees have been appointed and are ?rnctioning effectively. The department has already begun the practice of vetting all SCM of?cials. Underpinning it all is the fact that in 2011 the mining industry contributed 9.6 %to our country?s Gross domestic product (GDP), more than 12 to total ?xed capital formation, more than 35 to our total export revenue and employed 2.9 of the country?s economically active population, which currently stands at more than half a million direct jobs. Furthermore, the sector contributes signi?cantly to the country?s corporate taxreceipts. It is important to note that more than 60 of the country?s energy and more than 90 of electricity generation is derived from activities associated with mining. We are tabling this budget at a time when, in?uenced by our mining sector strategy, which is a product of the tripartism of Mining Industry Growth Development Employment Task Team (MIGDETT), we have an historic opportunity to rekindle the role ofthe mineral and energy complexin our economy in a quest to eliminate the evil triplets ofpoverty, unemployment and inequality which are stubbome refusing to disappear from our landscape almost two decades after 1994. The urgency of ensuring that we take advantage of the next wave of the commodities boom which will surely come was underscored when President Jacob Zuma announced massive infrastructure plans in his State of the Nation address. The projects promise solid progress ahead for our nation. We are committed to working together with other state institutions on action plans to optimise the sector?s extractive capacity, attraction of investment as well as maximising mining?s job creation potential. The availability of more rail, port and water infrastructure necessary for mining will raise the level of minin g, resulting in job creation and economic development, in various commodities including iron and manganese ore in the North em Cape and coal from the Witbank and Waterberg coal?elds in Mpumalanga and Limpopo respectively. My department will by end of July 2012 release the Coal Resources and Reserves Study which is being led by the Council for Geoscience which reveals that the Waterberg region hosts a signi?cant share of our country?s remaining coal reserves. This is the ?rst comprehensive assessment of South A?'ican coal resources and reserves since 1987. The Mineral and Petroleum Resources Development Act (MPRDA) The promulgation of the MPRDA in 2004 introduced a policy of equal access to South Africa?s mineral resources which was previously the exclusive preserve of one racial group. The democratic mineral dispensation introduced the policy of socio-economic responsibility, which was to be achieved through the application of black econ omie empowerment policy by ensuring that the historically dis advantaged South Africans are brought into the mainstream of min in g. However, challenges experienced in the implementation ofthese policies resulted in the need to review both the MPRDA. The objectives of the review are to: provide for a detailed consultation process, support the bene?ciation strategy, streamline the licensing process to avoid delays and inef?ciencies, provide for enhanced punitive measures, improve the current construct of the Act and to remove ambiguities, and provide clarity on the mining of associated minerals. The review ofthe Act however, does not seek to introduce any major policy shifts in respect of exploration and exploitation of South A?'ica?s mineral resources. Accordingly, in our efforts ofhannonis ing our legislation, the creation ofsynergies between the MPRDA and the MHSA becomes pivotal in ensuring that we create regulatory alignment. Mineral Regulation South African Mineral Resources Administration (SAMRAD) Last year we launched our ?agship online mining licence application system, SAMRA D. [am pleased to report that a?er initial teething problems associated with implementing a ground breaking systemwe have now entered a stage where system is rapidly gaining ground. To date, we have well over 3 500 applications having been successfully lodged remotely through the department?s website into a system designed to ensure that we achieve transparency, reduce the margin of error and ensure a consistent systematic approach to the evaluation and eventual decisions regarding the awarding of rights. Honourable Members will recall that on this occasion, last year, we reported on a process of cleaning up our data with the intention of ensuring that we migrate it into the new system This has now been done. Working together with the mining industry, we are now giving priority to processing legitimate old order rights applications that are our in our system We are committed to ensuring that these conversions yield positive results. The department will continue to search for ways to upgrade the system to ensure that we remain an attractive and 10.25113 Mineral Resouees: Mirister's competitive mining jurisdiction. These improvements will include amongst others, the ability of the system to allow users ultimately to lodge various categories of reports online. Integrated Iicens ing system A fragmented regulatory and mining licensing system has long been identi?ed as one of the impediments to investments and therefore the competitiveness of the South African mining industry. The current timeframes for obtaining a mining right, water use licence and an environmental authorisation are not aligned, which results in prolonged processes and unnecessary delays. As a result the Department of Mineral Resources (DMR), and the Departments of Environment and Water Affairs are currently reviewing the regulatory ?'amework in an effort to put in place an integrated and streamlined licensing system which will not have a negative impact on the timeframes. It is envisaged that the streamlined licensing process will ensure compliance by right holders with the various pieces of legislation, create certainty in the regulatory framework, expedite the licensing process and ultimately strengthen the constitutional imperative of security of tenure. This is in keeping with the principles of co-operative governance which dictate that govemment departments streamline their processes to promote seamless compliance with all relevant and applicable legislation. Over and above this, I am pleased to announce that a task team reporting directly to the Minister of Water and Environmental Affairs and elf will deal with the issues that we have just outlined. Honourable members would recall that we had extended the moratorium in Mpumalanga due to the complex nature of environmental challenges in that province. This culminated in over 41 Rights that are located in Wakkerstroorn and Chrissiesmeer being identi?ed as those belonging to the category ofenvironmentally sensitive areas. Consequently we have taken action to prohibit mining within these areas. The Pot Auctioning ofRights At the Mining Indaba I announced measures we intend taking to address the issue ofthe rights that are either being revoked or are lapsing. In February this year, I published a notice in the Government Gazette inviting submissions with regard to our intention to introduce a new system in the auctioning ofrights. i would like to thank all those who have made representations which, 1 must add, were not opposed to the system, but were instead offering suggestions on how we can address the technical aspects ofthe process itself. After due consideration, lhave decided to issue a proclamation in the Government Gazette which will invite applications on revoked or lapsed rights. In this regard, rules that are aligned with the MPRDA will be clearly spelt out in the Gazette. The ?rst round ofbidding would take place before the end ofJune 2012. Litigation cas es and its impact on transformation Whilst reaping the fruits of transformation brought about by the MPRDA, as a department we are concerned that the recent court decision with regard to the matter certain litigation matters, which we are appealing, will have unintended consequences ofreversing the gains oftransformation in the mining industry. We have a historic obligation to do everything in our power to ensure that trans formation and competitiveness of the sector are not compromised. Transformation Mining Charter We call on the mining industry to implement fully all the provisions contained in the scorecard of the Mining Charter. Audits that were conducted by my department have revealed that the level of compliance is not what it should be. Such as amongst others: Low levels of implementation of Employment Equity by some mining companies. Low level of women representation at senior management level especially in decision making structures. Frontin especially by women who do it on behalf of men. Companies that change approved Social Labour Plans (SLPs) without appropriate consent from the department and without consulting communities. Suppliers of cap ital goods to the mining industry are mostly reluctant to transform and transfer skills to the Black Economic Empowerment (BEE) entities. Rampant use of expired BEE veri?cation certi?cates and ?'ontin g. umpmg .org 3.7 10125113 Mineral Resouces: Minister's Budget Vote Speech Procurement Honourable members! Procurement is one of the critical pillars of the Mining Charter. In this regard, I am concerned about the manner in which the entire procurement value chain is being handled in the mining industry. It is disturbing that procurement bene?ts are being reduced for BEE entities that are limited to mundane and peripheral issues such as catering, cleaning and gardening services. And these entities are excluded ?om sustainable core activities such as capital goods, services (such as transport) as well as consumable goods. Working together with the mining industry, we have an historic obligation to ensure that the historically dis advantaged South Africans play a key role in this regard. SLP Social Labour Plans are an essential instrument in the hands of the democratic state to ensure that communities bene?t from mining operations. It is an area where we have identi?ed gaps in the proper alignment of identi?ed projects with Integrated Development Plan (IDPs) and consultation with communities. Sadly this is one of the areas that constitute con?ict between and mining companies Itherefore call on the mining industry to embrace and implement these imperatives without equivocation as they will create harmony between the mining industry and communities. We are keen to work with the mining industry in circumstances where voluntary compliance is both a moral and an ethical issue. This should be the case as all the mining companies profess to embrace the King Code on Corporate Governance whose chapter six enjoins mining companies to comply with the law. Rehabilitation My department continues with the project to rehabilitate derelict and ownerless mines. Working together with Mintek we have reached agreements with communities on the implementation of the Heuningvlei project whose scope has been fmalised. Taking this into account and building on the experience gained, projects for upcoming activities are expected to be concluded before the expiry ofthe current three year cycle. In the year 2011/12, a total of 115 temporary jobs were created in the Northern Cape. It is anticipated that during 2012/13 there will be a ?rrther 260 temporaryjobs, to include the and Limpopo Provinces, with the bulk ofthejobs still being created in the Northern Cape. My department has secured the services of an actuary to conduct the valuation of the liability associated with Derelict and Ownerless Mines as Well as providing the necessary cash ?ow requirements for successful implementation of the programme. The work is almost completed and a report will be ready by the end of this month. We believe that this work will go along way in informing our implementation plan and resource requirements going forward as well as improving the overall approach towards rehabilitation. We will do this as we tackle the practice whereby some major companies are prone to selling off assets to junior mining companies which have huge environmental liabilities. Bene?cia?on In July last year, Cabinet adopted the bene?ciation strategy which is central to our bid to ensure that the mineral and energy complexyields concrete bene?ts to our country and its people. It includes the overall toolbox of interventions at the government?s disposal in support of value addition to minerals extracted in South Africa. We are currently in the process of ?ne tuning these tools for practical application in the industry. This will take the form of an implementation plan with clear actions for the identi?ed commodity groups. It will, however, align the Act with the recently approved bene?ciation policy to ensure that the mining industry contributes to local value addition by making available the requisite mineral inputs to the local bene?ciators. Working together with our State Owned entities such as Mintek and the Regulator, we are steaming ahead with various programmes to give effect to the Cabinet approved bene?ciation strategy In this regard, we have to continually seek, amongst others, that minerals such as platinum are able to ?nd new opportunities and markets other than the traditional catalytic converter market. We therefore welcome Anglo American Platinum?s promotion of the centuries-old ?re] technology, whose fuel cell locomotive was launched in Rustenburg yesterday. It was a pleasure to see this cutting-edge, green technology being rolled out in such a promising direction one which is of special interest to mining. i wa l/ 10'25/13 Mineral Resources: Minister's Budget Vote Speech This will include initiatives such as underground coal gasi?cation in a bid to extract maxinnrm value fromour coal resources. Bene?ciation initiatives We are also endowed with semi-precious and precious stones which we need to use to recon?gure the racial patterns to of the jewellery industry. This, amongst others, includes jewellery fabrication which seeks to increase the bene?ciation thus leveraging maximum value ?'om our mineral resources. This value addition activity has the potentialto create a new cadre of skilled entrepreneurs who will be realplayers in the industry, working together with the Department of Higher Education and Training through MINTEK and Further Education and Training (PET) colleges. My department plans to host a Jewellery Summit sometime this year, to engage stakeholders on how best to build on this window ofopportunity. Additionally, my department will work through the State Diamond Trader to ensure that HDSAs become part of the mainstream and contribute to the economic growth and job creation. We want to revisit the model that involves the State Diamond Trader and we recognise the shortcomings inherent in the current con?guration. We will continue to search for ways to make it more ef?cient and enable it to carry out the mission for which it was founded. In the meantime, the South A?ican Diamond and Precious Metals Regulator (SADPMR) will strive to ensure that the historically disadvantaged South A?'icans bene?t and utilise the licences for which they have been awarded. This will be done whilst tackling the rampant acts of fronting prevalent in this important area. In the same vein, the Kimberley Process (KP) has elected South A?ica as deputy chairperson of the process during the year 2012 and we will assume the chair in 2013. As founder members we accepted this honour as it coincides with the 10th anniversary ofthis initiative founded in the modest Tabernacle Church in Kimberley. This occasion as Chair gives us the opportunity to review the statutes and other founding documents in a bid to ensure that we meet the current challenges facing diamonds industry. SOMCO Subsequent to the Cab inet?s decision to establish a state owned mining company and the endorsement ofthe African Exploration Mining and Finance Corporation (AEMFC) to operate as a nucleus for this entity, Cabinet further approved the model and the hiving offofAfrican Exploration Mining and Finance Corporation from the Central Energy Fund's Group of Companies. My department is working with the Department ofEnergy, the Central Energy Fund, the AEMFC itself, as well as the National Treasury to give effect to this decision so that the AEM can operate as a stand-alone public entity. Honourable members you will recall that in the last Budget speech we announced that AEMFC had commenced with mining activities at its Vlakfontein mine and signed an offiake agreement with Fskom. Thus far the mine has produced 681 458 tonnes and sold over 468 554 tonnes ofcoal. This crucial entity of the democratic state is about to undertake a second project which is now in the post-feas ibility phase. and will, upon operation, produce 4.6 million tonnes of coal per annum over 33 years, creating almost 1 000jobs . Shale gas Following Cabinet?s decision last year to investigate the feasibility of shale gas in our country, and our subsequent decision to set up a task team to engage with this issue, we will by end ofJuly table the report to cabinet for consideration. Mine health and safety The health and safety of mine workers in the mining industry remain of utmost importance to the Department of Mineral Resources. Workers in this industry have endured harsh working conditions ever since the birth of mining in South Africa, including living in overcrowded single-sexhostels, poor health and safety measures and the indignity of being separated from their loved ones for inordinate periods of time as a result of the ridiculous system of separate development. Even to this day, 18 years after 1994, this sector?s commitment to the health and safety of both the workers and communities resembles a curate?s egg - good in parts, which means lacking overall. This must change. The inevitability of death, injury and disease must be rooted out. In addressing poor health and safety issues at mines, we have identi?ed the need to review the Mine Health and Safety Act. This review will strengthen enforcement provisions, reinforce penalties and ensure alignment and harmonisation with the Mineral and Petroleum Resources Development Act, 2002 (MPRDA). While we remain ceased with these challenges, we however recognise some improvement in the health and safety since intensiiyin the monitoring and enforcement measures. The enforcement measures have resulted in an 80% reduction in the number of deaths, from 15 in January to 3 during April 2012. This is the lowest ever recorded compared with other historical mupmg 5'7 10f25?13 Mineral Resources: Mirister?s BudgetVde Speech ?gures which were generally more than 11 deaths per month. It is also commendable and encouraging to note that some of the mining companies are now going for more than 6 to 18 months without fatalities. Amongst others, these are Lonmin, DRD, Coal of Africa, Kumba, Pan African Resources and Petra Diamonds. Hon members, whilst we recognise improvement, we still experienced in 2011 a total of 123 fatalities, compared to 127 in 2010, which translates to about a 3% reduction. This year (2012) to date, ?gures show that fatalities in the mining industry have dropped by 9% - ?om 43 in the same period in 2011-to 39 in 2012.The number of mine injuries has reduced by 35% from I 024 in 2011 to 668 in 2012. Major contributors to the accidents are gold and platinum mines. I call upon the mining industry to once more commit and intemalise the to the value system ofzero harm Iamconcemed with the safety ofwomen in the mining industry. Mining companies are urged to implement measures aimed at protecting women miners. In this regard I commend the NUM for championing the just cause of safety of women miners. As the DMR, we remain determined to apply Section 54 to ensure compliance, taking into account the self?regulatory ?'amework ofthe mining industry. [want to state categorically that it is mischievous to regard section 54 as the only contributor to the loss of production. This ?ies in the face of the reality that mine operational challenges, can contribute signi?cantly to low production. We have agreed with stakeholders to set up a task team comprising all relevant sector stakeholders to investigate the concerns raised in respect of the application of Section 54. The task team has ?nalised its investigation and has made recommendations for consideration by the Minister of Mineral Resources and other Mining Industry Growth, Development and Employment Task Team (MIGDEIT) principals. As Ihad promised last year, we have split the North West regional o??ice into two separate o??ices. The split has resulted in the reduction of fatalities and injuries by 43% and 51% respectively in the Rustenburg area. In November 201 I, the Mine Health and Safety Council hosted a summit focusing on the attainment of the Occupational Health and Safety milestones as set out in 2003, which include the eradication of Silicosis, Noise Induced Hearing Loss, TB and Silicos is continues to be the cause of premature retirement and death at our mines while tuberculosis (TB), exacerbated by has proven to be a serious challenge for the industry. Noise Induced Hearing Loss (NIHL), resulting ?om exposure to high levels ofnoise in working places, is also a signi?cant health hazard. The commitments made during the summit on TB and were also informed by the National Institute of Occupational Health (NIOH) report which was commissioned by the Department of Mineral Resources. Also, during the 201 1 summit a commitment was also made to implement the Culture Transformation Framework (CTF). The ?'amework pillars include the review of bonus incentives to ensure that zero harm is prioritised ahead of produ ction; mine owners will lead by example in walking the zero harmtalk; and the adoption of technology and leading practice for eliminating health and safety risks to mine employees. The stakeholders are also committed to establish a Centre of Excellence to do research, capacity building and facilitate research implementation. Stakeholders committed themselves to the aforementioned in order to improve the industry?s Health Safety record. The department recently participated in South A?'ica?s 2012 world TB Day commemoration in Carletonville which was also addressed by Deputy President Motlanthe. Iwould like to commend Gold Fields for supporting this programme and call on other mining companies to do likewise. There is still a great need to improve on the current skills capacity within the mining sector. To this end, the department is collaborating with the Department of Higher Education and Training (DI-IET) and our social partners through the Mining Quali?cations Authority (MQA) to improve on skills development. Some ofthe programmes include artisan development; improving women?s participation in mining; developing black managers, fostering skills required to support Bene?ciation Strategy; issuing bursaries annually at public Higher Education and Training institutions with mining and mineral related faculties; training Health and Safety Reps and Shop Stewards over ?ve years using accredited institutions; and exploring ways of improving the percentage pass rate for various certi?cates of competency. Although there has been signi?cant progress in ensuring that the appropriate measures are taken to eliminate illegal mining, the problem is still of great concern. The department will continuo collaborating with the relevant law enforcement agencies among .org .zalpri 6/7 A . id's-WV Mineral Rescues-5: Minister's Budget Vote Speech 3 and social partners to ensure that there is a national effort to combat illegal activities. Conclusion As I present this Budget, lwould stress that we are working round the clock to build the capacity that is necessary in this department in all areas, including in the vital legal section which is involved so regularly and exhaustively in litigation. We are also building up our lT systems to improve ef?ciency and effectiveness of the department. We are working on developing partnerships, between government and the private sector, as well as with communities and civil society generally. We are looking forward to participating in the Mining Iekgotla in collaboration with the Chamber of Mines in our drive to ensure that South Africa remains the preferred mining destination in Africa. It is only on a basis of sound partnership that our country, with mining con?rmed in a leading role, will ensure success in the centuries to come. Finally I want to thank the staff of the DMR, so ably led by the Director General, who has taken the proverbial bull by the horns and has acquitted himself very well in his new role. The same goes for the Deputy Minister for his leadership and contribution to the second Budget. It is this same commendable spirit that must characterise the work of the department as we proceed to build a mining dispensation that is in harmony with the environment - and with communities, with whom we constantly seek to engage in consultation. Hon members, I Thank You. Source URL: .org 717 I: . - an?asrs a, Bpa?meiai? ta; finieircnmemai A?nira gamma an sewn-1 9nvate BagX 44? Fadsurs Buiiding 315 Praia-nus Saree: - TEI 2? 12} 310 3911 Fax 2712) 322 2682 nine Reference: 985i201 3 BEA Rainmnca: 1 2/1 6i313I3i85 Enquiries: Fiona Grima? - 's'eiepi-mne: 012?395-i?93 Fax: 012-320-7539 E-maii: Ms Charlaine Enemies Eco?ariners PO Bax 73513 FASRLAND 21339 Fax. No: 088 539 612? ER a? innit Bear Ms Baarijies 06}: THE IMPACT ASSESSMENT REPGRT FGR WE YZERMYN UNBERGROQNB COAL NEAR MFUMALANGA PRDVENCE The) Final Envimnmentai and Social imnani Ansensment Re:an received on {39 January 2914, this Department?s letter denied 26 March 201%,. and the correspondence and amended anplica?on fawn for anihnrisaiinn received on 2? March 2014 refer. The is hereby rege?ied by tine Depa?ment? in ierms of ingniaticn 34{2}{i3i of ne 53A Regniaiinns, 2336. The must be amended to address the imagining issues. Laycui Aiiem ai?ives a} The onnciudas that ?ne prefensd surface Layout design an? be considered fur deveiupment. givan the pertaining its the siie. It further recommends that an aitemaiive iaycnt design be considered and iizat i'his iaynni he reassessed in datnrmine whether both environmenfai and sncia~ ewnomic aspects can be The Department agrees with this recommEndaiinn. Please con?rm wheiner an aiiemai?aje? Eeyoni can be nicposed, which will aiinw the proposed mine to coexist within this sensitive area, given the Department?s canme with regards in b?od?vena?ty, in mini b) bainw. Amend inn ESAR in insignia ihe nnw?iaynni pian and nnziate the Speciaiist staining in inc?n?e 2?9? inn assessment an? inn new a?iemai?ve iayout. 13" ma- 6) Piease aisn insignia an Updated layout map, gnawing the exact ionaiinns and footprints of the deveinpmeni and associated and amen. Please inniuds in the repnri an indication sf ?ne amoan? 9i requirad its-be (neared for the development {as per the new iaynui}. 94(0?5 Biodiversity Concerns The Department has identified a number of biodiversity concerns, which need to be taken into consireration anoint addressed in the EAR: d} it) The study area contains at least one ecosystem MoidrerstroomrLuneburg Grassiands) listed in Terms oi the National. Environmentai Management Biodiversity Act, 2004 It could also contain Paulpietersourg Moist Grassland, Eastern Temperate Freshwater Wetlands and Eastern i-Eghverd Grassland, listed as Vulnerable.'This was not identitied in the biodiversity study. and is an omisa'm that needs to be recti?ed. The oiodivers'rty study only looked at Macias and Rutherford classi?cationsnot the NEMBA-iisted ecosystems. The site is largely classified as Irreplaceable in the Mpurnalanga Biodiversity ConServation Pian. Please be advised that unless ground-itching has been undertaken to prove that the deveiopment not impact on the reason for the classi?cation, this may constitute a fatal ?aw. - The area has a high occurrence of wetlands of vent high ecological importance. This could be an indication that groundvr'ater is very close to the surface and that'any impact on either may be deafened to the other. in the National Freshwater Priority Areas maps. this area is classi?ed as an NFEPA Priority Area, which means that it is critical for the sustained suppiy of potahie water 'ior dowralream communities. Dewalering of this area at the rates proposed inthe study irrlii teed to the towering of the water table, which is likely to have a very high negative impact on biodiversity, food production are water provisioning to areas ?the mine cannot operate without decorating activities. in the light of the above, this application cannot be considered without the identification of the watercress. the water users dependenion the water, and a quanti?cation of the devratsring effect on the economic activities inducing increase in droughts and ?oods. This information needs to be included in the amended EIAR. The EIAR states that there may be potential for Acid Mine Brainage resetting item the attired Seam. it recommends that additional ground and surface Water studies he sneenatren in order to adequately quantity the anticipated impacts from the proposed mine. The Department supports the tor additional studies in the amended investigating the potential irooact . This application falls within the Grassland important Bird Area ihis the has been rccogrised by BirdLiie South Africa and BirdLiie international as both a nationai (SA 125) and glohei did} an that is critical for the conservation of tied Date List (is. threatened) bird species, grassiand seismic bird species and congregatory wateroirds. The list of Red Data bird species {in the thai'oote?ntiatiy occur in the protect ares fails to inches the regionally Critically Endangered and soothers African endemic Rudd's Lari: (Heteromiretraeddii, Approximately 35% of the global association of Ruddis Lari: is confined to the grasslands within and km radius around li'ralrirerstrocm. The study area is surrounded by protected areas to the sooth and east of the site,- and some oi as tend parceis in the application are part of adscinred Protected Environment. as such, pisses he edsiadh at a mining license cannot be issued without the express nennissicn ot'tne Minister er Environmentalhh?sirs. ix) kw. Additional Recuiramenjs 6i The speciaiist studies do not appear to include an assessment of the attematiye iayout entices and access routes identified in the EIAR. Page 273 of the EAR further states that some of the aesiciated iniraetructare tag. ieydewn i constructinn areas. amass roads and pipeiines) required tor the disposed mine were not assessed, as the final iayoet plan was not available at the time of completing caries or the speciaiist studies. Please ensure that ail associated infrastructure required for the mine is assessed in the report and specialist studies. This includes the portion of the road that will need to be re-alignedier the new iocatien oi the discard dump. Also inciude an assessment of the shatter alternative access road eroposed in the Piease ensure that all listed activities, in terms of GN R. 544, 545 and 546, are discussed in he including the pipelines required for the transportation of water and dangerous goods reservoirs, aid any culverts! bridges required for the access roads (provide a description of these activities}. Page 218 of the EIAR states that a geologylgeotechnicai specialist study was net required. This Department however requires that a geotechnicai study! specialist opinion be inciuded in the BAR. in order to address the issue of mine stability and the potential for subsidence (as requested in the acceptance of FSR letter dated 9 October 2013}. Please address the issue oi whether the generators alone are suiticient to supply power for the Life of Mine or Whether the iriahitity of the mine is dependent on the tutors epcraval at an aitsrnathre power source. Piease note that the Department does not support incremental decision making, sharia the viability of the mine depend upon the future aaprouai of additional power lines or power staiiens. The significance {ii the potential cumulative impacts has net been indicated in the repcri {Section ms at the EAR). Pieasa provide an indicatien at cumulative impact signlheanoe. The contact details (telephone, fax and email) of the commenting authorities reset be included in stakeholder database; as per Reguiaticn 55(1) ct Git R. 543. Piease also induce these details in the cover ietter cf the amended - Ensure that the environmental management programme includes the de'mlls and expertise of the person l-rhu prepared the report. a description the aspects of the activity covered by the (Le. project description} including a layout mat;l with nego areas clearly identi?ed} and an indication cf the time periods within which the measures ccntempiamd in the must be imptamanted, as net Regulation 33 er? Git R. 543. Baciaratlons of independence icons for the speciaiists and an indication at? the excedise ct spaciatists inset aiso be inciuded in the resort, as per Regaiation and {is} of Git Ft. 543 (forms availatite from the Department). The ?epadrnent recommends tanner consultation with the South African heritage Resource agency (SAHRA), considering diet the heritage impact study sancti?ed to SAHRA was a pie-feasibility etaty and the layout of? the mine was yet to tie ?nalised at the time of ccnsuimtlon. The appilmnt is herehy reminded to comply with the reentremeete st ragetatien st Git Ft, with regard to the time period aliowed for complying with the assessments ei the and Sit R. 54356) with regard in the allowance of a comment seeded tar interested and attested deities {thitst an all moods submitted to the competent authority for decision-niakirrg. The amended Emit inset he available to lanPs for comment. Both the Department cf Wateretiairs and the department ei r?igrtcaiture Forestry and Fishery must be consulted for funnier inn-dis. The Department w?ii funher seasidemhe app?icazion 15mm on receipt {if the amendetf BAR You are hereby reminded of Section 24? ofthe National Environments! Management Act, Act No 107 61998. as amended, that no $915va may commence prior ta an environmental authorisation being gran?ed by the Department. Yours faithfuily y? ?aw-=75 Mr ishaam Abader Deputy Direcior?General': Legal, Authorisaticns, Compliance 3. Enforcement Degartment of Environmental? Affairs Letter signa? by: Ms Solomsns Designat'on: Hector: integrated Environmentai Authorisation Data: 3455' with CC: Moran Munaamy Atha Africa thures (Pm I Fan: on 734 Ms Naiil'siwe Mlangeni I MDEDECT Fax: ma was 4514 d1: Piess?s DMR 1 Fax: 013 690 3285 NM - wager affairs [t-emnruenl: . . .. -1 Wm: a?'aira - - i QF SGUTH AFRECA, a? I Jr 2? Ci 9mm ?mmf 21.22 5:31? 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'in mum-Ls lh-Al Imam to by: 1' by um pmucr.? sch-1w ?at-Mar- r- mum qua?l?cy and qua-113;; u'a cam-mama! to It: a! :11: Ema 3:51- am hum.- bean ?EmlT?i 2- out; nan] nb'rg to Sic-ma mm a wry - #937171; r5252 :fF in ligkt af the wraaems mm mm mam data mm my new new: mam wish? in arms mam- mm mien; in this mm are ma?a: ?1le :umnsi?n mm realsz ?tzmm Lama aramqun was: an an W310 sum-3:2. Em: af?m. fmnfuy, . }n 71: mm; 95m 3-: wraciwimm mpzeearmaamm Wm $3 b-s?ali ?5-333 Regims? - 9153:? 65? 5 In?QXule 8 Mpumalongo - TOURISM AND PARKS AGENCY Our ref: 11.44 Wakkerstroom Luneburg 29 August 2012 Ms. Lizelle Prosch WSP Environment and Energy .Jear Ms. Prosch RE: APPLICATION FOR ENVIRONMENTAL AUTHORISATION FOR THE PROPOSED YZERMYN UNDERGROUND COAL MINE (MP3015I1I1121215PR) OVER THE PROPERTIES GOEDGEVONDEN 95HT, KROMHOEK 93HT, YZERMYN 96HT AND ZOETFONTEIN 94HT Your application for environmental authorisation for the aforementioned Yzermyn Coal Mine has reference. Please note that the MTPA has never been informed of the application for prospecting over the aforementioned properties and therefore the MTPA objects to the granting of these rights on the grounds that no consultation has taken place with the relevant authorities. The area in question forms part of a larger area proposed to be declared as a Protected Environment under the National Environmental Management Protected Areas Act (57 of 2003) and considerable work, time and investment have been put into the process of engagement with Iandowners and other parties to have the area declared and is approaching the ?nal stages of declaration. The work of expanding the protected areas within this part of the province also forms part of a project initiated by the National Grasslands Programme in 2008 and with support from WWF-SA and therefore considerable investments have been made within this area by the respective organisations. The area in question is classi?ed as a sensitive area from a biodiversity conservation perspective and is identi?ed as such within the Mpumalanga Biodiversity Conservation Plan (MTPA, 2006) which was endorsed by the Mpumalanga Provincial Cabinet in 2008. Private Bag X11338 Nelspruil, 1200, N4 National Road, Gateway, Mo?a?n +27 (13) 759 5300/01 Fax: +27 (13) 755 3928 Reservulions: +27 (13) 759 5432 W. puma Ian 90 A 37S it! Mpumolangci TOURISM AND PARKS AGENCY Furthermore, the properties in question also form part of a larger area proposed for exclusion from mining in terms of Section 49 of the Mineral and Petroleum Resources Development Act (Figure 1) and the proposal to have the area identi?ed under Section 49 of the MPRDA was submitted to the DMR in 2011 on the following grounds:- 0 The area is critically important from a water production perspective: - The area is largely classed as irreplaceable within the MBCP and thus crucial for the achievement of provincial conservation targets; 0 The area is listed as a threatened ecosystem in terms of the National Environmental Management: Biodiversity Act; and The area is identified as important for provincial and national protected area expansion. .. Legend . l' m: 63 l-I. I I Paulettedmu Figure 1: Extent of the Wakkerstroom Wet Grasslands proposed under Section 49 of the Mpumolongo TOURISM AND PARKS AGENCY The MTPA therefore strongly object to any mining activities within the Wakkerstroom Wet Grasslands area. The MTPA hereby registers as a stakeholder in the Environmental Authorisation process. Please forward any correspondence in this regard to enviroteg@gmail.com or contact Mr. Brian ?dorris at 0845797979. Yours sincerely, Mr. B.E. Morris SENIOR MANAGER PROTECTED AREAS EXPANSION MPUMALANGA TOURISM AND PARKS AGENCY Cc: Mr. Fundisile Mketeni Deputy Director-General: Biodiversity and Conservation DEPARTMENT: ENVIRONMENT AFFAIRS Private Bag Pretoria 0001 Tel: {012) 310 33143315 Dr. G. Batchelor Director. Environmental Impact Management Department of Economic Development. Environment and Tourism Gbatchelor@mpg.gov.za MM Xuf?? Cl .. Mpumalanga TOURISM AND PARKS AGENCY Ref: LUA 14/1273 Unit: LUA Enquiries: F.N.Krige E-mail: frans@MTPA.co.za Tel/Fax: 013-2540279 Ms. Eumari ECOPARTNERS PO. Box 73513 FAIRLAND 2030 Fax: 086 539 6127 E-mail: eumari@ecopartners.co.za CC: Dear Ms Eumari SUBJECT: HEREWITH COMMENTS REGARDING THE APPLICATION FOR AN AMMENDED ENVIRONMENTAL IMPACT ASSESSMENT REPORT FOR THE PROPOSED YZERMYN UNDERGROUND COAL MINE PROJECT, BY ATHA-AFRICA VENTURES (PTY) LTD IN TERMS OF SECTION 40 OF THE MINERAL AND PETROLEUM RESOURCES DEVELOPMENT ACT 2002, (ACT 28 OF 2002) AND NEMA ACT, 1998 (ACT NOI 107 OF 1998) IN RESPECT OF THE TARGET FARMS YZERMYN 96 HT PORTION 1, KROMHOEK 93 HT, GOEDGEVONDEN 95 HT AND ZOETFONTEIN 94 HT, IN THE MAGISTERIAL DISTRICT OF PIET RETIEF, MPUMALANGA PROVINCE. Your correspondence, reference DEA 14112/16/3/3/2/593 of date 16 September 2014 has reference. MTPA has an objection to the proposed Yzermyn underground mining operation, on above mentioned farms for the following reasons: 1. The Department of Environmental Affairs rejected the ?nal for various reasons and requested that Atha ?Afn'ca Ventures should investigate an altemative site layout plan. Additional specialist studies with regards to the status of the ecosystem, the signi?cance of potential impacts, on wetlands, through dewatering and the effect of this on the stream?ow in terms of quantity and quality of water to the ecosystem and water users. MTPA assessed this amended proposal and believe that the specialist studies done by Scienti?c Aquatic Services in December 2013 and June 2014 with regards to the new above ground infrastructure and study site is flawed in that the information provided on the biodiversity sensitivities is very vague contradictory and incomprehensive compared to the initial studies done by Natural Scienti?c Services In 93% June 2013 which were also inadequate and vague. The fauna and ?ora lists of conservation important species found on site is poor. On page 205 it is stated that none of the sensitive species of mammals. butterflies, amphibians, reptiles or plants associated with this ecosystems were found on the layout sites. With reference to a site visit by done by MTPA specialists in 2013 and the Terrestrial and Freshwater Biodiversity assessment summaries included below illustrates that Ecopartners has omitted signi?cant biodiversity elements. MTPA cannot ?nd proof that this amended has addressed all the required requests by the Department of Environmental Affairs and should be rejected again. The mining proposal should be rejected on the grounds that it is not legal to mine in or under a Protected Environment. Protected Environments declared in terms of Chapter 2 of the Protected Areas Act N0 57 OF 2003) Mining prohibited or restricted - MPRDA (no 28 of 2002). The majority of Atha-Afn'ca Ventures iargetarea lies in the declared Mabola Protected Environment. (GAZETTED, 2251 OF 22 JANUARY 2014). The map indicated in the Atha- Africa report that indicate the extend of the Mabola Protected Environment on page 201 is wrong and misleading. Refer to MBSP map ?the National lnterestto mine in a South African Biodiversity priority area an application should be proposed to both National Ministers of DEA and DMR. Atha- Africa Ventures motivation for the withdrawal (De?proclamation) of a part of the Mabola Protected Environment for the sake of coal mining cannot be in the interest or contribute to the health of current and future South Africans. The impacts associated with mine water in?ows and described by Delta Water Systems Modeling with regards to groundwater in?ows (Dewatering) of the above ground water from wetlands and seepages and streams as well as aquifers located within the signi?cant zone will occur during the life of the mine (15 years) and thereafter. It cannot be prevented. The sensitive groundwater dependant eon-systems . wetlands and springs with their associated biodiversity will thus be permanently modi?ed and degraded. The report gives no indication on how this will be mitigated effectively. Wetland loss is evident. The report is not clear on the effect that subsidence will have on the topography, roads and underground water?ows after mining. The report recommends that the post-closure Acid Mine Drainage decent water he treated until water quality stabilizes. This mitigation of such a devastating impact is very vague in that it does not Quantity the amount of decanting acid mine water nor does it highlights the fact that the water quality might not stabilize in the next hundred years. MTPA does not ?nd a sound rehabilitation plan with regards to prevention of dewaten'ng and loss of wetlands and prevention of AMD water back into the environment in this report The alternative site layout plan for the discard dumpsite and the above ground infrastructure is not acceptable. It lies within close proximity of a network of wetlands, seepage wetlands and partly within the 1km restricted zone of a Critical Biodiversity River. (Tributary of the Assegai river) (Mining and Biodiversity Guideline, 2013. SANBI et al.) MTPA does not agree with the summary by EcoPartners with regards to the Natlbnal Assets on page basic flaw. The Area is regarded as a high priority Biodiversity Conservation area and a 0171 high risk area for mining. The impact on biodiversity due to the underground mine is not limited to the surface infrastructure and some depletion of water. if the cumulative effect of mining if notmitigated satisfactorily it can be devastating for an ecosystem. The report stated erroneously that the threatened terrestrial ecosystem status in this area is ?Vulnerable't Endangered. (MBSP. 2014). 8. The abundance of coal elsewhere in South Airtca does not area. it is highly undesirable The status of the ecosystems listed are justify the mining of coal in such a high risk to degrade and outlets such a sensitive biodiversity area through coal mining and this should be prevented in order to adhere to Section 24 of this country's Constitution. A summary of the protective legislative measures of the study site is provided in Table 1, below. Table?l. Legislative measures. Biodiversity?Status Description i Applicable legislation Farms listed in the Mabola Protected Environment. Por. .1 of Yzermyn 96 HT excluded but included in the Wakkerstroom Wet Grassland Protected Environment under the pending Section 49 MPRDA Mabola declared in January 2014 Protected Environment see map in Appendix 1. Fig.1. Protected Environments declared in terms of Chapter 2 of the Protected Areas Act NO 57 OF 2003) Mining prohibited or restricted - MPRDA (no 28 of 2002) a piication. Farms has Endangered The farms lie within the Endangered ecosystems is listed as Ecosystem status. Paulpietersburg Moist Grassland threatened ecosystems in terms of and Wakkerstroom Montana Grassland ecosystems, needs protection for maintaining ecological processes,Fig.2. Section 52 of the Biodiversity Act .2004 Act no 10 of 2004. Critical biodiversity areas Large areas of these terms consist of CBA irreplaceable and CBA optima! areas, map in Appendix 1. Needs protection to meet biodiversity conservation targets. Fig. 3. Protected in terms of the Biodiversity Act, NEMBA, in terms of sections 24(5) and 44 of NEMA regulations 547 of 2010). Freshwater ecosystem CBA's The CBA river has a recommended 1km buffer around it and the wetland clusters delineated with 100 buffer zones. Required to meet biodiversity targets for freshwater ecosystems. Refer to freshwater assessment map in Appendix 1. Fig. Not currently protected by law; but management and monitoring guided by several wetland guidelines. Mining in this area isout of place within, the framework of national environmental management policies norms and standards such as those laid out in Koo 4. Section 48 MPRDA MTPA does not support this. application on the grounds of the biodiversity richness and sensitivity of this mountain catchment area. This area has been identi?ed as one of South Africa?s few Biodiversity Priority areas where any form of mining should be avoided. The area is also listed as a SA Strategic water resource area. Degradation. pollution of water and loss of wetlands must be avoided. The MBSP maps in Appendix is self explanatory with regards to the sensitive biodiversity areas both in terms of terrestrial and freshwater biodiversity assessments and fennel protection measures. MTPA does not support the change of land use of these farms. Your co-operation is highly valued. Kind Regards his. is." - ears ACTING GENERAL MANAGER CONSERVATION DATE: Aj Lir Pow MM 1} 1 I'll ll? Till-I111? FIN - Inn warn-um: Ilium? In": . . nu. 1 - (won-u -lnumuu Inn-M lnL-mmuu main-um?! Ila-mm null-u. Iluvl?r-IIM I?lwolm 10 Fig?I . MBSP map, current status of Protected Areas together with Terrestrial CBA . ?Dy-arid Sandal; Summit? application: App?mlen imam Fm than: - . - A, BA. Put-murath . I . It!? Tam-table? Mir I - unuumrm I - Nter - . Ham! - cwuunmu canon-nu - Mn?lushna Mum-my warns on um Fig 2. MBSP map, with declared in relation with MTPA Sec 49 application and Stewardship site. ?mm-nu Thrust-Md Ecuynems [Hakim Fig.3. MBSP map indicating the Endangered Threatened Ecosystems of this area. -zh?d?k 1* Dun-unusual. IH "mil?lwhm hull-In [Hui-H. Fig. 4. MBSP map, freshwater assessment. Indicating a CBA River in portion 1 of Yzermyn 96 HT and CBA wetlands . -lumunwuu HumanEli "sols-:MBSP map showing the Ecological Support Area. strategic water source area and the CBA river that needs to have 1 kilometre restricted zones on both sides (Yzermyn 96 HT). Privala Bog X11338 Nelspruil, 1200. N4 Nul?ional Rood, Hull's Goleway, Mohaiin Tel: +27 [13) 75?? 5300/01 Fax: +27 (13] 7.55 3923 Antietam 10 Ma Mpumolonga TOURISM AND PARKS AGENCY Ref: LUA 15l1273 Unit: LUA IBSS Enquiries: F.N.Krige E-mail: TelfFax: 013-2540279 Ms. Fiona Grimett Department Environmental Affairs Private Bag 447 Fedsure Building Pretoria 0001 Fax: 012 322 2682 E?mail: fqimett?ienvironmentoovza Dear Ms. Grimett HEREWITH COMMENTS OF THE FINAL ENVIRONMENTAL IMPACT REPORT WITH SPECIFIC REFERENCE TO THE YZERMYN UNDERGROUND COAL MINE. COMMENTS INCLUDE THOSE ON THE RISK ASSESSMENT DONE BY ECOPARTNERS FOR THE ATHA GROUP. WAKKERSTROOM, MPUMALANGA PROVINCE. Eocpartners correspondence, reference 14ll2llS/3l3l21639 and NEAS reference 0001965/2013 of 10/0212015 has reference. The declaration of the Mabola Protected Environment in terms of the National Environmental Management: Protected Areas Act. 2003 (Act no .57 of 2003) (As amended) has been Gazetted on 22 January 2014 notice 20 of 2014 no 2251 by the MEC for the Department of Economic Development. Environment and Tourism in Mpumalanga. (Figure MBSP. 2014) under 4?1? I Len-l . - - it lulu?1.4.4 rig: herm- I: {I?ll f' i - h- I-pr- unha- . v?uq-Hu Inn-H.- u. "a In" unm- '5 ID I . . hi6! Fig. 1. Map indicating the Mabola Protected Environment in relation to Kwamandhlangampisl PE and Tate! kop Nature Reserve. MTPA has before abovementioned declaration was in place applied in 2010 to the National Minister of Minerals and Energy through the Mpumalanga Regional Manager at RMDEC to considered it to Sterilize these marginalized minerals under Sec. 49 cf the MPRDA in 2010, based on the 2004 National Spatial Biodiversity Assessment and to exclude those farms from future mining. The National Protected Areas Expansion Strategy has since 2004 initiated a formal program in the Wakkerstroom area to formally protect this national biodiversity asset. Many applications for Prospecting and mining were turned down by the MTPA EIA Unit within this proposed Protected Environment . The Mpumalanga RM from DMR after consultation during a RMDEC sitting committed his of?ce to put any new applications on hold until a ruling was made bythe DMR Minister. The Declaration of the Mabola Protected Environment was thus a milestone achieved with regards to Cooperative Governance and this specifically between Mining and Biodiversity. The purpose for the declaration of Mabcla Protected Environment is: 1. To enable the owners of the land to take collective action to conserve biodiversity on their land and to seek legal recognition therefore (28) (2) The Atha Group has no surface rights. Not even in portion 1 of Yzermyn 96 HT. (where they intend to place their above ground structures) that lies outside the Protected Environment but inside the MPRDA Sec 49 restricted area. 2. To protect the area if the area is sensitive to development due to its biological diversity natural characteristics scenic and landscape value and the provision of environmental goods and services (28il2ltcili)liillivilv); According to the Mpumalanga Biodiversity Sector Plan (2014) the study area is located in an area identi?ed as Critical Biodiversity irreplaceable and CBA optimal areas and is those areas of highest biodivrsity value outside formal protected areas. These land category areas must be managed for biodiversity conservation to meet the national targets set for grassland areas. The Aquatic Biodiversity assessment indicates an extensive network of Critical Biodiversity Rivers and seepage wetlands which provide habitat for a rich variety of organisms and sustainable supply of clean water for thousands of humans 3. To protect a speci?c ecosystem Endangered Wakkerstroom montane grassland. 4. To ensure that the use of natural resources in the area is sustainable The final Atha for the proposed Coal Mining operation will permanently threaten approximately 4000 ha of the geology, degrade the soils, the grazing and wetland systems, the pollution plume and possible AMD decent will pollute the waters and reduce the biodiversity status and desirability for future land uses in this currently high biodiversity and high sensitive area. The protected Area status will protect the ecosystem against such negative degradation and will ensure sustainable use over the long term. Very little of South Africa's grassland areas remain enact whilst there are many areas outside this designated Conservation area where Coal mining are permitted. Atha- Africa has the opportunity to apply to mine in many lower risk areas. The AthalEcopartners has recognized the Mining and Biodiversity Guidelines (2013) as a document that provides explicit direction in terms of where mining -related impacts are legally prohibited, where biodiversity priority areas may present high risks for mining and where biodiversity may limit the potential for mining but still persists to challenge the strategically planned and now proclaimed. Biodiversity Protection areas. After assessing the Final EIR and specifically the Risk assessment report together with the mitigation proposals and mitigation costs the following shortcomings and basic flaws were detected. a) Baseline Environmental Studies: i. 2. 3. 4. b) The EooPartners map on page 214, fig 7-43 Mabola Protected Environment is inaccurate and misleading. The Mabola Protected Environment is larger and linked to KwaMandlangimpisi Protected Environment. The EcoPartners reference to the MTPA application Section 49 under the MPRDA with regards to portion 1 of Yzermyn 96 HT and other farms during the comments and response report is inaccurate and misleading. MTPA did not publish the report nor did we supply Atha with the whole picture. It was handed over for DMR 's Minister to peruse. The EMP from EcoPartners indicates that the hydrocensus with regards to wetlands were delineated through desktop studies and that most of the numerous fountains, critical wetland sources not at all assessed. in fact the report indicates that all the GPS data tabulated on pg 181 and 182 are false and fabricated. This is poor and unacceptable. The water contribution of the affected wetlands to the critical biodiversity rivers and other streams were not quanti?ed. Dry periods amount of water compared to the wet season were not calculated. The report stated that the fountains were not thoroughly assessed and amount of water they produced not measured. This information is critical to determine the effect of dewatering and to mitigate the dry out effect during the proposed mining period of 15 years. Data lacks critical information to determine the extent of mitigation measures. Delta H?s Groundwater model stated on page 53," Groundwater dependant ace-systems and yields of springs (water supply) located within the significant zone of dewatering of the shallow aquifer. limited to the site boundaries, could be negatively impacted and some may dry up during the life of mine" The recommendation that the treated decent water post closure emanating from the treatment plant be discharged to the adjacent hillsiope seepage wetlands making use of a spigot which then drains into a sand filter along the edge of the hilislope seepage wetland to allow for recharge of the wetland and ensure reaching the valley bottom wetland resource is further cleansed and contributes to the instream flow of the local drainage network is very vague and might mislead many readers. The Ecopartner report stated that the water treatment plant is proposed to treat decent water post closure. There are no indications of how the wetlands and fountains will be fed with clean water especially in the dry seasons from day ?i that dewatering occurs. This explanation of discharging treated water into the hillsicpes post closure will be too late. The plan is not feasible and practical. Cost analysis There are no indications of any specifications of such a treatment plant, if it will be neither a passive or active treatment plant nor the capacity thereof, details about brine management and pollution control dams. The Question needs to be asked as to whom will fund the operation and maintance of the water treatment plant for the next hundred years that polluted water will decent. 96M IVA A10 3. A detailed cost analysis of the water irrigation system to prevent the dry out and destruction of wetlands and grassveld of the proposed 4000 ha mining footprint in the Mabola Protected Environment is required. These areas will be dewatered during the underground mining (Dewatered cone) from the start of underground mining operation. The quanti?cation of the volume of clean water needed to mitigate this uncontrolled impact could have been informed if proper baseline studies were done. The cost determination to maintain this irrigation over the 15 year lifespan would have been possible. The acknowledgement of Atha Africa-ventures of the implications of these mitigation measures at this scale needed in order to maintain this highly sensitive environment (High risk wetlands and fountains would make this coal mining project a no go option. The whole mining target area is inundated with seepage wetlands and water recharge areas. Prospecting programme: MTPA has requested the applicant to produce a map indicating the prospecting borehole plan. The vague Prospecting borehole plan provided in the indicates that Atha has bored drill holes in wetlands and wetland buffers which were not permitted. Recommendations: Based on the environmental significance of the Study area and the marginal mineral deposits it is proposed that the most appropriate long-term investment that should be made within this Agricultural landscape is for biodiversity conservation and associated compatible land uses. MTPA does not foresee any way that Conservation. Tourism and Coal mining in this instance Atha-Africa can coexist. The Lease area borders on Legally Protected Areas, with the protected buffers where ?Mining is Prohibited". The Final Atha-Afn'ca Ventures Environmental impact Assessment Report had a few basic ?aws with regards to their impact assessment. mitigation methods and long term financial provision. The MBSP indicates that many tow risk areas surrounding these irreplaceable areas for mining does exist where mining and Agriculture might coexist ifthe strategic planning is done responsibly. Taking all the factors into account MTPA does not support the change in land use of these farms. The Precautionary principle of Sustainable development should be the decision maker's best practical and socially responsible option. Kind Regards MR. F.N.KRIGE LAND USE ADVISORY UNIT BIODIVERSITY SUPPORT SERVICES MT PA DATE: 310312015 ail ?vimAN Private Bag X11338 Nelaprulf, 1200, N4 Nulional Road, Hall's Gateway, Ma?a?n Tel: +27 (131 759 5300/01 Fax: +27 (131 755 3928