South Africa: Supreme Court of Appeal

---

THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

 Reportable

Case No: 1165/2023

 

In the matter between:

ENDANGERED
WILDLIFE TRUST                       

FIRST APPELLANT

FEDERATION FOR A
SUSTAINABLE                  

SECOND APPELLANT

ENVIRONMENT

and

DIRECTOR-GENERAL
(ACTING)                        

FIRST RESPONDENT

DEPARTMENT
OF WATER AND SANITATION

ATHA-AFRICA
VENTURES (PTY) LTD                
SECOND
RESPONDENT

 

Neutral
citation:   Endangered Wildlife Trust and
Another v Director-General (Acting) Department of Water and
Sanitation and Another (Case no 1165/2023)
[2025] ZASCA 69 (29 May 2025)

Coram:                
SCHIPPERS, HUGHES, WEINER and SMITH JJA
and VALLY AJA

Heard:                 
19 February 2025

Delivered:           
29 May 2025

Summary:
Statutory appeal – s 149(1) of National Water Act 36 of
1998 (NWA) – against decision of Water Tribunal –
confined
to question of law – what the law is on certain issue
– High Court incorporating heads of argument into judgment –

no reasonable apprehension of bias established – meaning and
effect of s 24 of NWA – sole question of law – remaining

issues questions of fact – appeal dismissed – costs –
vexatious litigation – abuse of court process –

environmental organisations ordered to pay costs.

ORDER

 

On
appeal from: Gauteng
Division of the High Court, Pretoria (Baloyi-Mere AJ and Nyathi J
sitting as court of appeal in terms of s 149(1) of the National Water
Act 36 of 1998):

 

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

 

JUDGMENT

Schippers
JA (Hughes, Weiner and Smith JJA and Vally AJA concurring)

 

[1]        
The appellants are non-profit environmental organisations. The second
respondent
is the owner of Yzermyn Underground Coal Mine (the mine)
situated outside Wakkerstroom, in the Gert Sibande District
Municipality
(the Municipality), in Mpumalanga. On 7 July 2016 the
first respondent, the Acting Director General (DG) of the Department
of Water
and Sanitation (the Department), issued a water use licence
to the second respondent in terms of Chapter 4 of the National Water

Act 36 of 1998 (NWA). The licence, which is valid for 15 years,
authorises the second respondent to undertake specified water use

activities associated with thermal coal mining to be conducted at the
mine.  

 

[2]        
On 1 December 2017 the appellants noted an appeal, in terms of s
148(1) of the
NWA, to the Water Tribunal (the Tribunal) against the
DG’s decision to issue the water use licence. The Tribunal
dismissed
the appeal on 22 May 2019.

[3]        
On 12 June 2019 the appellants appealed the Tribunal’s decision
to the
Gauteng Division of the High Court,
Pretoria (the High Court), in terms of s 149(1) of the
NWA. On 11 May 2023 the High Court (Nyathi J and Baloyi-Mere AJ)
dismissed the
s 149 appeal with costs. The High Court refused the
appellants leave to appeal. The appeal is before us with special
leave of this
Court.

 

The
basic facts

[4]        
The basic facts are uncontroversial and can be briefly summarised. In
2011 the
second respondent acquired coal prospecting rights under the
Minerals and Petroleum Resources Development Act 28 of 2002 (MPRDA)

to an area of 8360 hectares outside Wakkerstroom, Mpumalanga. These
rights were previously held by BHP Billiton, Ingwe Colliery
and
Bonengi Mining Services. The prospecting area covered 12
privately-owned farms. After an initial exploration process, a second

exploration process was undertaken from July to November 2013.

 

[5]        
After the exploration, in 2013 the second respondent was granted a
mining right
under the MPRDA in respect of only five farms. These
farms consist of agricultural, grassland and forestry areas, and
vacant land
with rivers and wetlands. The main land uses include
agriculture, conservation and cultivation.

 

[6]        
The proposed underground coal mining area is extensive – some
1200 hectares.
Initially the surface infrastructure would have
covered over 50 hectares, but this was reduced to approximately 22.4
hectares.
The mine is anticipated to produce 2.2 million tons of coal
per annum, with an estimated lifespan of 15 years.

 

[7]        
If mining commences, the mine will use the bord and pillar method.
This entails
the removal of large areas of coal-containing ore, by
leaving in place ‘pillars’ of coal to hold up the roof of
the
underground mine. Two adits (a horizontal passage to give access
from the surface) will be sunk to access the underground coal seams.

The mining project will involve underground drilling and blasting,
the extraction, crushing, screening and stockpiling of coal
product,
and the transportation of the coal product for sale.

 

[8]        
Initially the second respondent engaged the services of WSP
Environmental (Pty)
Ltd (WSP) to conduct a social and environmental
impact assessment. WSP produced several specialist reports in 2013.
These include
a hydrological assessment; socio-economic assessment;
geohydrology impact assessment; and a biodiversity baseline and
impact assessment.

 

[9]        
Similar specialist studies were conducted by Scientific Aquatic
Services (Pty)
Ltd (SAS) on behalf of the second respondent. In
February 2013 SAS produced reports containing a faunal, floral and
wetland ecological
assessment; and an environmental assessment and
authorisation for the proposed discard dump as part of the mining
project. The
initial SAS reports were revised in February 2014. SAS
also produced a Wetland Ecological Assessment in June 2014, which was
revised
in May 2015. The SAS reports were revised because the DG on 9
January 2014, informed the Department of Mineral Resources of several

concerns relating to the mine and why the proposed mining could not
be supported.

 

[10]      
Subsequently WSP was replaced by EcoPartners, an environmental
assessment practitioner,
which revised the relevant reports in
accordance with concerns raised by the Department of Environmental
Affairs regarding the
second respondent’s application for an
environmental authorisation. As a result, substantial changes were
made to the mine
design, layout and surface footprint.

 

[11]      
The second respondent appointed XMP Consulting (Pty) Ltd (XMP) to
furnish a report on the
economic impacts of the mine. In October 2013
XMP produced a report entitled, ‘Review of the South African
Coal Mining Industry’.

[12]      
The application for the water use licence was compiled by Kara Nawa
Environmental Solutions,
and submitted on 10 March 2014. On 10 April
2014 the DG advised the second respondent that the application was
incomplete; that
several reports and studies had to be submitted or
revised; and that an Integrated Water and Waste Management Plan
(IWWMP) was
required. This was done between April 2014 and March
2015.

 

[13]      
In June 2014 EcoPartners appointed SAS to conduct, inter alia, a
wetland ecological assessment.
In August 2014 EcoPartners produced a
downstream water usage report, and appointed Delta H Water Systems
Modelling, which produced
the Yzermyn Underground Coal Mine –
Numerical Groundwater Model Report (the Delta H report), drafted by
Prof Kai Witthüser.

 

[14]      
On 18 March 2015 the second respondent submitted a revised water use
licence application
to the Department, together with its IWWMP, based
on new studies and design modifications in accordance with the
directions from
the DG. On 22 April 2015 the Department informed the
second respondent that the public participation process which had
been carried
out ‘was not specific on the water use activities
as per the NWA’. The Department required an advert to be placed
in
one newspaper for a period of 60 days for a public
participation process in terms of s 40(4) of the NWA. The second
respondent
was also directed to submit the mining permit, mining
right and a social and labour plan as part of its application.

 

[15]      
On 19 June 2015 the second respondent caused a notice of a public
participation process
concerning the application for a water use
licence, to be published in three local newspapers in terms of s
41(4) the NWA. The
notice, published in English, Afrikaans and
isiZulu, informed the public of their right to submit comments
between 19 June 2015
and 20 August 2015. A draft of the IWWMP was
published with the notice.

[16]      
On 27 August 2015 the second respondent submitted the revised IWWMP
and application for
the licence to the Department. The first
appellant responded to this in a one-page letter dated 30 September
2015, stating that
it opposed the application.

 

[17]      
On 20 April 2016 the DG advised the second respondent that the formal
requirements for
the application of the water use licence had been
met. A Record of Recommendations was compiled on 5 July 2016. The
second appellant
apparently objected to the application in a letter
dated 27 June 2016. However, the Department denied receipt of that
letter. The
DG approved the application on 7 July 2016.

 

[18]      
On 18 November 2016 the appellants commissioned various experts to
review the second respondent’s
technical reports (to which they
had been given access on 3 August 2015 already). These
specialist review studies obviously
were not before the DG when the
decision to grant the water use licence was taken. The appellants
furnished no reasons why the
specialist studies had been commissioned
after the licence had been issued. Neither were the specialist
studies nor other studies
which were in possession of the appellants
and their attorneys, Centre for Environmental Rights (CER), provided
to the second respondent’s
consultants, prior to the hearing of
the appeal in July 2018. Some documents co-authored by the CER itself
and reports by other
civil society organisations published in 2011,
which the CER used in its advocacy work, had to be introduced after
an application
to the Tribunal by the appellants to reopen their case
in October 2018.

 

[19]      
On 15 December 2016 the CER filed a notice of appeal against the DG’s
decision to
grant the water use licence. The CER was also involved as
an interested and affected party in the application for the licence.

[20]      
Nearly a year later, on 1 December 2017 the appellants amplified
their grounds of appeal.
They substantially changed several of their
arguments and abandoned some that had become indefensible in the
light of the specialist
reviews which they had obtained.

 

[21]      
The grounds of appeal, in sum, were these:

(a)           
The DG failed to consider the likely effect of the proposed
water
uses on the water resource and on other water users, required by
s 27(1)(f) of the NWA. The DG also failed to give effect
to the efficient and beneficial use of water in the public interest,
required in terms
of 27(1)(c) of the NWA.

(b)          
The DG failed to authorise two water uses associated with the closure

of the mine, namely the discharge of water containing waste into a
water resource (s 27(1)(f) of the NWA), and the disposal of
waste in a manner which may detrimentally impact on a water resource
(s 27(1)(g) of the NWA).

(c)           
The DG failed to apply the precautionary management principle
in
s 2(4)(a)(vii) of the National Environmental Management
Act 107 of 1998 (NEMA), required by s 2(1) of the NEMA.

(d)          
The DG’s decision to grant an exemption in terms of regulation

4(b) of Government Notice 704 in respect of water uses associated
with the mine, was unjustifiable.

(e)           
The DG failed to consider the true socio-economic impact of
the water
uses, if authorised, required by s 27(1)(d) of the NWA.

(f)            
The DG failed to give effect to the right to procedurally
fair
administrative action as contemplated in s 3 and s 4 of the Promotion
of Administrative Justice Act 3 of 2000 (PAJA).

(g)          
The DG failed to consider material information relating to the
strategic
importance of the water use, required by s 27(1)(i)
of the NWA.

 

[22]      
Before the Tribunal the appellants adduced evidence by three
witnesses, namely Mr Andrew
Johnstone, a hydrogeologist; Dr Le
Maitre, a researcher with expertise in ecosystem services assessment
and mapping; and Ms Christine
Colvin, a hydrogeologist.

 

[23]      
The DG presented the evidence of Ms Hasina Aboobaker. She is the
environmental officer
who prepared the Record of Recommendations for
the issuance of the water use licence.

 

[24]      
Mr Praveer Tripathi, the second respondent’s Senior Vice
President, testified that
it acquired the mine as a result of an
investment conference in India at which the South African government
sought investments.
The second respondent paid US$40 million for the
equity in Bongeni. The entire process to commission specialist
studies to secure
the necessary authorisations and permits had cost
the second respondent US$61 million. Over three years the company had
expended
over US$700 million in respect of the mine. Mr Tripathi said
that the mine would create some 500 jobs and that the coal to be
mined
would be traded in domestic and international minerals markets.

 

[25]      
The second respondent called four expert witnesses, namely Mr Peter
Smit, an environmental
assessment practitioner in mining management;
Dr Frederik Botha, a hydrogeologist who specialises in managing the
geological design
and planning of mines; Prof Witthüser, a
specialist hydrogeologist in water systems modelling; and Mr Stephen
Van Staden,
a wetland ecologist who co-authored the SAS reports. Mr
Thabiso Nene, a community leader of the area in which the mine is
located,
also gave evidence on behalf of the second respondent. The
Tribunal heard evidence over seven days.

 

The
Tribunal’s decision

[26]      
The Tribunal dismissed the appeal. Its findings may be summarised as
follows. The first
ground of appeal was unsubstantiated. The evidence
of Prof Witthüser and Dr Botha and the detailed Delta H and
SAS reports
showed that scientifically sound methods were used in the
wetland and hydrogeological studies. The DG considered the
recommendations,
some of which were negative. This led to the
imposition of several conditions in the water use licence, requiring
the second respondent
to take measures to prevent pollution, monitor
underground water pollution and report thereon. The second respondent
adduced expert
evidence on the prediction of decant and the proposed
mitigation measures in the form of a modularised water treatment
plant. The
appellants’ claim that no provision was made for a
water treatment plant post-mining, was unfounded. The DG properly
considered
s 27(1)(c) and (f) of the NWA, imposed
appropriate conditions to address the adverse impacts of the
authorised water uses and the decision to issue
the water use licence
was reasonable, fair and rational.

 

[27]      
The Tribunal found that the appellants’ claim that the DG
failed to authorise two
water uses associated with the closure of the
mine, had no merit. These water uses related to the discharge of
water containing
waste into a water source (s 21(f) of the
NWA) and the disposal of waste in a manner which may detrimentally
impact on a water resource (s 21(g)). The evidence
demonstrated that there was no data nor accurate information on the
nature and volumes of water required to be treated
after closure of
the mine. The water use licence contains a condition requiring the
second respondent to prepare a closure plan
five years before
decommissioning of the mine, when such volumes and flows would be
clear. Further, the licence provides for a
review of the conditions
every two years, which authorises a variation of existing conditions
or the imposition of new ones; and
s 52 of the NWA provides for
‘earlier renewal or amendment’ of a licence, which would
include the authorisation of
water uses for post-mining activities.

 

[28]      
Concerning the alleged failure to apply the precautionary principle
in the NEMA, it was
common ground that the mining operations would
result in a degree of contamination of ground water and surface
water. What was
disputed was the degree of such contamination and
what would constitute sufficient mitigating measures. The Tribunal
stated that
for the precautionary principle to apply, it had to be
demonstrated that the mine poses a threat of serious or irreversible
environmental
damage; that there is scientific uncertainty regarding
such damage; that the measures taken should not go beyond what is
needed;
and that the principle does not necessarily prohibit
development.

 

[29]      
Coal mining, the Tribunal said, is a centuries old industry and the
methods, impacts and
environmental dynamics around this activity were
generally known and well established. The scientific evidence
submitted by the
experts on both sides showed a clear understanding
of the potential risks of coal mining to water resources. What was
however uncertain,
was the volume and quality of decant post-mining,
because mine data is obtainable only once mining commences, when
mining plans
and post-closure rehabilitation plans are designed.

 

[30]      
The Tribunal stated that the precautionary principle should be
considered together with
other principles in s 2(4) of the NEMA,
particularly those relating to sustainable development. The
appellants’ case was
based on the GCS Review findings and other
expert reviews, which were demonstrated to be shallow and lacking in
ground truthing.
However, the respondents did not provide absolute
levels of comfort. Based on the evidence adduced, the Tribunal found
that the
DG had considered the precautionary principle and that its
application did not preclude the issuance of the water use licence.
It said that the principle does not require unequivocal scientific
certainty before decisions are taken, otherwise no development
would
be authorised.

 

[31]      
The Tribunal found that the DG’s decision to grant an exemption
in terms of regulation
4(b) of Government Notice 704 in respect of
water uses associated with the mine, was necessary for mining to take
place. The appellants
placed no information before the Tribunal to
demonstrate why the granting of the exemption was unjustified. The
basis for this
ground of appeal was the GCS Review which the Tribunal
found, was scientifically flawed.

 

[32]      
Regarding the fifth appeal ground – the failure to consider the
socio- economic impact
of the water uses – the appellants
submitted that documents before the DG did not ‘report
objectively and fully on
the possible effects of the proposed
colliery on people living in the area’; that a significant
number of jobs were not going
to be created; and that most of the
people work on surrounding farms, and derive a limited income from
farm jobs and social grants.
The Tribunal rejected these submissions
for the following reasons. Part of the appellants’ arguments
were based on ex post facto reviews that were not placed
before the DG when the impugned decision was taken. They placed no
evidence nor information before
the Tribunal to demonstrate the
alleged negative socio-economic impacts resulting from the grant of
the licence. In fact, the appellants
conceded that they presented no
evidence by local communities nor farmers, and that they focus on
‘the wider interests of
water resources in the country as a
whole’.

 

[33]      
The Tribunal noted that s 27(1)(d) of the NWA required it to
consider not only the socio-economic impact of authorising water
uses, but also the consequences of a
failure to authorise such uses.
In contrast to the appellants, the respondents provided evidence on
both these issues. And Mr Nene’s
evidence that the mining area
is characterised by poor families earning low wages, which is
supplemented with bags of mealie meal
from farmers, went
unchallenged. He said that any number of jobs from the mining company
would be better than work on farms, which
kept the community
impoverished.

 

[34]      
The Tribunal also had regard to s 27(1)(f) of the NWA and
held that there were sufficient detailed reports on the impacts of
water uses on the wetlands, underground water,
springs and aquifers
in the mine site; and that the reserve determination was a measure of
assurance that there would be sufficient
water for ecological needs
after granting the water use licence. The Tribunal accordingly found
that there would be a positive
socio-economic impact on the local
community. The estimate of 70 jobs during construction and 576 jobs
during the operational phase
would make a substantial difference to
the livelihoods of the community, which had not been enriched by
current water uses.

 

[35]      
Although counsel for the appellants had indicated that they were not
persisting with the
challenge based on procedural unfairness, the
Tribunal nonetheless found that it had no foundation. The second
respondent conducted
a public participation process as required by s
41(4) of the NWA. The appellants had registered as interested and
affected parties.
The CER was provided with revised reports, a letter
explaining why wetland offsetting was not possible and a table of
final mitigation
measures, after it sought information under the
Promotion of Access to Information Act 2 of 2000.

 

[36]      
The Tribunal found that the DG’s alleged failure to consider
‘the strategic
importance of the water uses to be authorised’,
as required by s 27(1)(i) of the NWA; and that the
exploitation and use of natural resources must be responsible and
equitable as envisaged in s 2(4)(a)(v) of the NEMA. The
Tribunal found that this challenge lacked evidence and was based on
vague submissions. It held that s 27(1)(i) had to be read with
s 27(1)(h), which requires the responsible authority to
consider ‘investments already made and to be made by the water
user’,
about which the appellants said very little. Further,
the life of the mine is 15 years, which is relatively short compared
to other
large-scale coal mining operations in the country.

 

[37]      
The appellants added a further ground of appeal midway through the
hearing, namely that
the respondents had not obtained the consent of
the owner of the farm Zoetfontein, required by s 24 of the NWA. This,
despite the fact that the licence was issued subject to the condition
that the second respondent would not be
allowed to commence
underground mining, until it provides the Department with a signed
copy of a consent form (DW902) by the owner
of Zoetfontein, declaring
that the licensee has lawful access to that property and may carry
out the water use activity related
to the licence.

 

[38]      
Section 24 provides that if consent cannot be obtained or is
withheld, the decision-maker may still grant the water use licence
‘if
there is good reason to do so’. The second respondent
informed the owner in writing of the public participation process and

discussed it with him. Thereafter, nothing was heard from the owner.
Having regard to these facts, and the considerations in s 27(1) of
the NWA, the Tribunal found that there were good reasons to dispense
with the owner’s consent as contemplated in s 24 of the NWA.

 

[39]      
The Tribunal dismissed the appeal. It confirmed the water use licence
and imposed three
additional conditions. First, the second respondent
is required, in terms of clause 14.1 of the water use licence, to
provide the
DG with proof of financial provision made in terms of
legislation other than the NWA. Second, the DG is required, within 60
days
of the Tribunal’s decision and before commencement of
mining, to review the adequacy of the financial provision by the
second
respondent and if necessary, require the second respondent to
provide further financial security in accordance with s 30 of the
NWA. And third, the two-yearly review of the water use licence in
terms of clause 4.1 thereof, must include a focused
review by
the DG of the adequacy of financial or budgetary provision made for
post-closure water treatment and remediation, consistent
with
prescribed monitoring and auditing reports on possible future
impacts.

 

The
appeal to the High Court

[40]      
In their notice of appeal in terms of s 149(1) of the NWA, the
appellants set out 11 grounds of appeal, which they said are all
questions of law. Some five months later they
added a twelfth ground.
However, the appellants persisted only with five grounds of appeal in
the High Court.

 

[41]      
In sum, the appeal grounds were these:

(a)           
Ground 1: The Tribunal failed to consider the strategic
importance of the mining area for water security and biodiversity.

(b)          
Ground 2: The Tribunal erred in holding that there were good
reasons to grant the water use licence in the absence of the
landowner’s
consent, contrary to s 24 of the NWA.

(c)           
Ground 3: The Tribunal erred in finding that the appellants
had a duty to place before it, evidence regarding socio-economic
impacts. The
statutory framework places that duty on the second
respondent as the applicant for a water use licence.

(d)          
Ground 4: The Tribunal erred in finding that the licence
provides for the treatment of contaminated water after closure of the
mine. It
ought to have found that the DG could not in the licence,
legally make provision for the treatment of contaminated water
post-closure
of the mine at the end of the licence period.

(e)           
Ground 5: The Tribunal erred in its interpretation and
application of the precautionary principle in s 2(4)(a) of the
NEMA, including the precautionary principle in s 2(4)(a)(vii).
It ought to have found that the application of the precautionary
principle had been established, and that it militated against
the
granting of the water use licence.

 

[42]      
The High Court dismissed the appeal, with costs. Its judgment may be
summarised as follows.
The NEMA principles do not preclude any
adverse impacts on the environment. Neither do these principles
constitute a checklist
with which a development must comply. Rather,
adverse impacts should be avoided, failing which they should be
minimised or remedied;
and the NEMA principles constitute normative
guidelines.

 

[43]      
The court stated that the precautionary principle traditionally
applies in a case where
there is scientific uncertainty about the
existence or extent of the risks or consequences of a decision or an
action; and that
it applies where such risks or consequences are
known, but there is scientific uncertainty about the efficiency of
the mitigation
measures in preventing or reducing the risk or
consequences. The court held that the precautionary principle had
been met in this
case.

 

[44]      
The High Court agreed with the Tribunal’s finding that the
wetland hydrological studies
were scientifically defensible; and that
the second respondent had demonstrated compliance with the relevant
provisions of the
NWA and that the necessary precautionary measures
had been put in place. It accepted that in deciding the matter, the
Tribunal
sought to harmonise the prevention of pollution and
environmental degradation with the promotion of economic and social
development.

 

The
issues

[45]      
This appeal raises the following issues:

(a)  Did the High
Court fail to give an independently reasoned judgment?

(b)  The nature and
ambit of an appeal under s 149(1) of the NWA.

(c)  Did the
Tribunal fail to consider the strategic importance of the mining area
for water security and biodiversity?

(d)  The proper
construction of s 24 of the NWA.

(e)  Did the
Tribunal err in failing to find that there was no provision for
post-closure treatment of contaminated water?

(f)  Did the
Tribunal err in its application of the precautionary principle?

 

The
alleged failure to give an independently reasoned judgment

[46]      
The
appellants submit that the High Court’s failure to give an
independently reasoned judgment gives rise to a reasonable

apprehension of bias, and infringed their right to a fair trial
enshrined in s 34 of the Constitution.[1]
This submission is based solely on the contention that the judgment
consists largely of the written heads of argument of the second

respondents’ counsel, which the High Court copied verbatim;
and it shows ‘essentially no sign of original or independent
application or reasoning’.    

 

[47]      
It is then submitted that a judgment which simply adopts one party’s
heads of argument,
does not give the other party a fair hearing or a
decision that reflects the necessary independence and impartiality
implicit in
s 34 of the Constitution, insofar as it applies to
courts. The appellants’ right to have a dispute resolved, it is
submitted,
contemplates a deliberative process where the evidence,
the law and the parties’ competing contentions are heard,
understood
and subjected to critical scrutiny; and which produces an
outcome through a process of independent reasoning.

 

[48]      
The test
for bias is settled. There must be (i) a reasonable apprehension that
the judicial officer might (not would) be biased;
(ii) by a
reasonable person in the position of the litigant; (iii) which is
based on reasonable grounds; and (iv) the apprehension
must be one
that a reasonable person would (not might) have.[2]
The Constitutional Court has held that a litigant who alleges
judicial bias or its apprehension bears a formidable burden, because

of the presumption of impartiality by virtue of the constitutional
oath of office that judicial officers are required to take,
as well
as the nature of the judicial function.[3]
The effect of this presumption ‘is that a judicial officer will
not lightly be presumed to be biased’.[4]
The test for bias posits a double requirement for bias: both the
person who apprehends bias and the apprehension itself must be

reasonable.[5]

 

[49]      
There is even a greater burden on the appellants in this case –
a decision by a court
comprising two judges. The allegation that the
court failed to give an independently reasoned judgment, is
opportunistic and baseless.
The appellants ignore the court’s
order in their favour issued against the second respondent. In its
heads of argument in
the High Court, the second respondent made the
following submissions. The CER had a direct and substantial interest
in the matter,
and the appellants had advanced a partisan and
misleading case in the proceedings before the Tribunal and the High
Court. The appeal
was an abuse of process to advance their agenda
against any form of coal mining. The appellants should pay the costs
of the appeal
on an attorney and client scale; and the CER, de
bonis propriis.

 

[50]      
The High Court struck out these allegations as being vexatious. It
ordered the second respondent
to pay the costs of the appellants, the
CER and various other public interest law centres admitted as amici
curiae.

 

[51]      
This is a clear indication of the High Court’s impartiality,
and that it gave an
independently reasoned judgment. It follows that
the appellants’ apprehension that the court might be biased, is
not only
unreasonable, but groundless – the court rejected
submissions contained in the second respondent’s heads of
argument
– the very document on which the appellants rely for
their contention that they did not get a fair hearing, or a decision

that demonstrates independence or impartiality on the part of the
judges hearing the appeal.

[52]      
In any event, the allegation of bias has no substance. It is
apparently based on the findings
of the High Court in its judgment.
It is submitted that they are taken verbatim from the second
respondent’s heads of argument; and that the appellants’
appeal grounds ‘received scant treatment,
with no analysis to
speak of’.

 

[53]      
The appellants are mistaken. The High Court set out the respective
cases of the parties
and outlined the issues, which the appellants
alleged were questions of law. Nothing turns on the fact that these
parts of the
judgment were copied from heads of argument: there is no
complaint that the court misconstrued the appellants’ case or
the
issues it had to decide. Next, the court considered each issue,
at the end of which it stated its conclusions. A plain reading of
the
judgment shows that the High Court’s findings are sustainable
on the evidence adduced before the Tribunal.

 

[54]      
The
appellant’s reliance on Stuttafords
Stores,[6]
is therefore misplaced. There, the Constitutional Court stated that
furnishing reasons in a judgment prevents arbitrary decisions,
and
explains to the parties and the public at large – which has an
interest in courts being open and transparent –
why a case is
decided as it is.[7] It is no
authority for the submission that the incorporation of a portion of a
party’s heads of argument in a judgment, gives
rise to a
reasonable apprehension of bias.

 

[55]      
As stated
by the Constitutional Court, the very nature of the judicial function
requires judicial officers to be impartial.[8]
Judges by training and experience, are adept at deciding cases by
objective assessment of the facts. An appellate court must therefore

decide whether objectively, the facts of the specific case give rise
to a reasonable apprehension that the judge might not have
been
impartial. If they do, the judge’s decision must be set aside.
 

 

[56]      
In this
case, the test is whether there is a reasonable apprehension by
reasonable or fair-minded litigants that the two judges
who decided
this case might have closed their minds to the appellants’
appeal grounds. This is a formidable burden. Extensive
reliance on a
party’s heads of argument by itself,[9]
does not amount to a reasonable apprehension of a lack of
independence, partiality or what counts as bias for these purposes.
After all, the very purpose of heads of argument is to convince a
court of appeal that the court below either erred or was correct.[10]

 

[57]      
Further, there is nothing wrong with incorporating portions of a
party’s heads of
argument in a judgment. In a paper on skeleton
arguments in the United Kingdom, based on papers written by Lord
Justice Mummery,
Mr Justice Hunt and Mr Edmund Lawson QC, the
authors say this:

‘Advocacy is the
art of persuasion through communication. The increased use of written
advocacy is not, as some claim, the death
of oral advocacy. A
carefully drafted written submission can, when skilfully used at the
oral hearing, enhance the impact of argument.

…

In short, your
skeleton can be used as an implement of decision.
That is what you should be aiming to achieve. The court, not the
client or the solicitor or your opponent or you, is the “consumer”.

 . . . When drafting a skeleton it is vital to bear in mind what
you want the court to say when it gives judgment. The
most flattering judgments incorporate half the skeleton.’[11]

 

[58]      
This shows that no right-thinking litigant could apprehend, let alone
reasonably apprehend,
that the mere incorporation of an argument in a
judgment is indicative of bias, or an infringement of the right to a
fair trial.
Something more is required; something which points to a
reasonable apprehension of a predetermined closed mind in the
adjudication
of the case itself. This, the appellants have not
demonstrated and their attack on the High Court’s order on this
ground
must fail.

 

The
nature of an appeal under s 149(1) of the NWA

[59]      
Section 146
of the NWA establishes the Tribunal.[12]
It states that the tribunal is an independent body which has
jurisdiction in all provinces;[13]
that it consists of a chairperson, deputy chairperson and as many
additional members as the Minister responsible for water affairs

considers necessary.[14]

 

[60]      
Appeals lie
to the Tribunal in several situations identified in s 148(1) of the
NWA. These include an appeal by the applicant or
any other person who
has timeously lodged a written objection, against a decision by a
responsible authority on an application
for a water use licence under
s 41, or on any other application to which s 41 applies.[15]

 

[61]      
Section 148(4) states that the procedure for lodging, hearing and
deciding appeals is contained
in Part 2 of Schedule 6 to the NWA.
Item 6(3) of Schedule 6 to the NWA provides:

‘Appeals and
applications to the Tribunal take the form of a rehearing. The
Tribunal may receive evidence, and must give the appellant
or
applicant and every party opposing the appeal or application an
opportunity to present their case.’

 

[62]      
Section 149 of the NWA provides:

‘Appeals from
decisions of Water Tribunal

(1) A party to a matter
in which the Water Tribunal-

(a)   has
given a decision on appeal under section 148, may, on a question of
law, appeal to a High Court against that
decision; or

(b)   has
determined the liability for compensation or the amount of
compensation under section 22 (9), may, on a question
of law, appeal
to a High Court against that determination.

(2) The appeal must be
noted in writing within 21 days of the date of the decision of the
Tribunal.

(3) The notice of appeal
must-

(a)   set
out every question of law in respect of which the appeal is lodged;

(b)   set
out the grounds for the appeal;

(c)   be
lodged with the relevant High Court and with the Water Tribunal; and

(d)   be
served on every party to the matter.

(4) The appeal must be
prosecuted as if it were an appeal from a magistrate’s court to a
High Court.’

 

[63]      
In the
light of the plain wording, context and purpose of the NWA, an appeal
under s 149(1) is confined to a question of law.[16]
Section 149(1) grants the right of appeal from a decision of the
Tribunal to a High Court ‘on a question of law’; and

requires the appellant to set out every question of law and the
grounds of appeal, ie the grounds on which the question of law
is
based.

 

[64]      
This
construction accords with the purpose of the NWA and the role of the
Tribunal. The preamble to the NWA includes the recognition
of the
‘National Government’s overall responsibility for and
authority over the nation’s water resources and
their use’.
Section 2 states that the purpose of the NWA ‘is to ensure that
the nation’s water resources are
protected, used, developed,
conserved, managed and controlled’ in ways that take into
account amongst other factors, ‘promoting
the efficient,
sustainable and beneficial use of water in the public interest’.[17]
Section 3 vests the public trusteeship of the nation’s water
resources in the national Government, acting through the Minister,

who ‘is ultimately responsible to ensure that water is
allocated equitably and used beneficially in the public interest,

while promoting environmental values’.[18]

 

[65]      
The
Tribunal is a specialist body with expertise in engineering and water
resource management. Section 146(4) of the NWA states
that its
members ‘must have knowledge in law, engineering, water
resource management or related fields of knowledge’.
These
members are nominated for appointment by the Judicial Service
Commission and the Water Research Commission, who are required
to
consider the criteria set out in s 146(4) and the reputation and
integrity of nominees when recommending them.[19]
Section 147(1) provides that the Chairperson of the Tribunal may
nominate one or more members to hear a matter, ‘after having

considered the necessary field of knowledge for the purposes of
hearing a particular matter’.   

 

[66]      
As to what
constitutes a question of law, in Media
Workers Association,[20]
E M Grosskopf JA said:

‘The term “question
of law,” the learned author states, is used in three distinct
though related senses. In the first
place it means a question
which a Court is bound to answer in accordance with a rule of law – a
question which the law itself has
authoritatively answered to the
exclusion of the right of the Court to answer the question as it
thinks fit in accordance with
what is considered to be the truth and
justice of the matter. In a second and different signification, a
question of law is a question
as to what the law is. Thus, an appeal
on a question of law means an appeal in which the question for
argument and determination
is what the true rule of law is on a
certain matter. A third sense in which the expression “question
of law” is used
arises from the division of judicial functions
between a Judge and jury in England and, formerly, in South Africa.
The general
rule is that questions of law in both the aforegoing
senses are for the Judge, but that questions of fact (that is to
say,
all other questions) are for the jury.’

 

[67]      
Thus, a
question of law within the meaning of s 149(1) of the NWA, is an
appeal on a question as to what the law is on a certain
issue,
concerning water resource management. The court is required to
‘ascertain the rule of law and to decide in accordance
with
it’.[21]

 

[68]      
The point
may be illustrated with reference to Magmoed.[22]
The case concerned the meaning of a ‘question of law’ as
contemplated in s 319 of the Criminal Procedure Act 51 of 1977. One
of the issues was whether as a matter of law, the trial court was
correct in concluding that no unlawful common purpose on
the part of
any of the accused was established beyond reasonable doubt. In
finding that this was not a question of law, Corbett
CJ said:

‘It
is a genuine question of law (a) whether
the evidence against an accused was such that there was a case to go
to the jury or that there were grounds upon which
the jury could
legally convict the accused of the crime charged; or (b) whether
the proven facts bring the conduct of the accused within the ambit of
the crime charged. . . . As the quotation from
the judgment of
Feetham JA indicates, category (b) involves
an enquiry as to the essence and scope of the crime charged by asking
whether the proven facts in the particular
case constitute the
commission of the crime. This is clearly a question of law. But, in
my opinion, a question of law is not raised
by asking whether
the evidence establishes one or more of the factual ingredients of a
particular crime, where there is no
doubt or dispute as to what those
ingredients are.’[23]

 

[69]      
This construction is buttressed by two factors: (i) the Tribunal is a
specialist body with
expertise in a specific case, having regard to s
147(4) and (5) of the NWA; and (ii) its decisions constitute
administrative action and are therefore reviewable under the PAJA. In
fact,
in 2019 the appellants launched an application in the High
Court to review and set aside not only the Tribunal’s decision,

but also the DG’s decision to issue the water use license to
the second respondent. That application is pending.

 

[70]      
The above
construction is further reinforced by the presumption of
interpretation that the Legislature knows and has in mind the

existing law when passing legislation.[24]
Although the NWA was passed prior to the coming into force of the
PAJA, Parliament certainly would have been aware of the fundamental

right to just administrative action in s 33 of the Constitution; and
that the decisions of the Tribunal would be subject to review.[25]
And this Court has held that decisions of the Tribunal constitute
administrative action, which are reviewable under the PAJA.[26]

 

[71]      
In what follows, the so-called questions of law are considered. As is
shown below, save
for the meaning and effect of s 24 of the NWA, the
s 149(1) appeal does not concern questions of law.

 

Ground
1: Failure to consider the strategic importance of the mining area

[72]      
The notice of appeal states that the Tribunal erred in considering
the following as irrelevant:
the mine area falls partly within the
Enkangala Drakensberg Strategic Water Source Area, according to
reports by the Council for
Scientific and Industrial Research (CSIR)
in 2013 and 2018; and the need for such areas to receive specific
protection in decision-making.
Then it is said that the question of
law raised by this ground of appeal includes the following: whether
the mine area falls within
the Enkangala Drakensberg Strategic Water
Source Area; the findings in the 2013 and 2018 CSIR reports; and
whether the evidence
of Ms Colvin and Dr Le Maitre constitute
relevant factors as contemplated in the opening part of s 27(1)
or s 27(1)(a), (b), (c), (d), (e),
(f), (g), (i) or (j) of the NWA.

 

[73]      
These are questions of fact dressed-up as questions of law. The
appellants’ complaint
is essentially that the Tribunal failed
to consider all relevant factors, including but not limited to the
factors listed in s
27(1) of the NWA. The appellants submit that
proposed mine area falls within a strategic water source area as
appears from the
2013 and 2018 CSIR reports; that it also forms part
of a river freshwater ecosystem priority area in the Atlas of
National Freshwater
Ecosystem Priority Areas in South Africa; and
that the Tribunal failed to take these factors into account.

 

[74]      
Section 27(1) provides:

‘Considerations
for issue of general authorisations and licences

(1) In issuing a general
authorisation or licence a responsible authority must take into
account all relevant factors, including-

   (a)   existing
lawful water uses;

   (b)   the
need to redress the results of past racial and gender discrimination;

   (c)   efficient
and beneficial use of water in the public interest;

   (d)   the
socio-economic impact-

         (i)   of
the water use or uses if authorised; or

         (ii)   of
the failure to authorise the water use or uses;

   (e)   any
catchment management strategy applicable to the relevant water
resource;

   (f)   the
likely effect of the water use to be authorised on the water resource
and on other   water users;

   (g)   the
class and the resource quality objectives of the water resource;

   (h)  investments
already made and to be made by the water user in respect of the water
use in question;

   (i)   the
strategic importance of the water use to be authorised;

   (j)   the
quality of water in the water resource which may be required for the
Reserve and for meeting international
obligations; and

  (k)   the
probable duration of any undertaking for which a water use is to be
authorised.’

 

[75]      
In short, the appellants’ case is that the evidence establishes
that the proposed
mine area falls within a strategic water source
area and a river freshwater ecosystem priority area, and that the
Tribunal erred
in failing to take these factors into account. This is
not a question of law.

 

[76]      
There is no
doubt as to the nature and ambit of s 27(1) of the NWA.[27]
On its plain wording, the factors listed in that provision do not
constitute a closed list. The appellants’ complaint is
that the
Tribunal erred in failing to take into account certain reports and
the evidence they presented. It does not raise a question
of law. In
any event, the Tribunal found that Ms Colvin did not at all consider
the water use licence issued to the respondent,
and that her evidence
was ‘merely providing a context’. Dr Le Maitre, the
Tribunal said, conceded that although it
is not recommended, coal
mining is not incompatible with the Strategic Water Source Areas
Report.

 

[77]      
These are not questions of law. Therefore, the appeal cannot succeed
on this ground.

 

Ground
2: the proper construction of s 24 of the NWA

[78]      
Section 24 provides:

‘A
licence may be granted to use water found underground on land not
owned by the applicant if the owner of the land consents or
if there
is good reason to do so.’

 

[79]      
As noted by the Tribunal, the appellants raised the failure to obtain
the consent of the
landowner of the farm Zoetfontein, midway through
the hearing. Although the proper construction of s 24 of the NWA is a
question
of law, the appellants’ real complaint is that consent
was not given. Their submission that there must be a ‘public’

reason to dispense with consent is both strained and untenable.

 

[80]      
It is
settled that legislation must be interpreted having regard to its
language, context and purpose.[28]
As was held in Hyundai
Motor Distributors,[29]
a statute must be construed in a manner that avoids limiting or
infringing a right in the Bill of Rights, where this is possible.

 

[81]      
Section 1(3) of the NWA states:

‘When interpreting
a provision of this Act, any reasonable interpretation which is
consistent with the purpose of this Act as stated
in section 2, must
be preferred over any alternative interpretation which is
inconsistent with that purpose.’

 

[82]      
Section 2 sets out the purpose of the NWA as follows:

‘The purpose of
this Act is to ensure that the nation’s water resources are
protected, used, developed, conserved, managed and controlled
in ways
which take into account amongst other factors-

   (a)   meeting
the basic human needs of present and future generations;

   (b)   promoting
equitable access to water;

   (c)   redressing
the results of past racial and gender discrimination;

   (d)   promoting
the efficient, sustainable and beneficial use of water in the public
interest;

   (e)   facilitating
social and economic development;

   (f)   providing
for growing demand for water use;

   (g)   protecting
aquatic and associated ecosystems and their biological diversity;

   (h)   reducing
and preventing pollution and degradation of water resources;

   (i)   meeting
international obligations;

   (j)   promoting
dam safety;

   (k)   managing
floods and droughts,

and for achieving this
purpose, to establish suitable institutions and to ensure that they
have appropriate community, racial and
gender representation.’

 

[83]      
The appellants submit that the purpose of the requirement of consent
by the landowner is
to ensure that the issuance of a licence to water
users does not deprive the owners of land of the right to full
enjoyment of their
land; and that an applicant bears the onus to show
that consent has been obtained. Then it is submitted that the
requirement in
s 24 that there must be a good reason to issue a
licence, means a good public reason, ie only if the water use
is for a public purpose or one in the public interest; and not for ‘a
private profit-making
mining operation’.

 

[84]      
Section 24
of the NWA on its plain language, empowers a decision-maker to grant
a licence to use underground water, either where
the relevant
landowner consents, or there is a good reason to do so. The
jurisdictional requirement of a good reason, itself constitutes
a
limitation of the right to ownership in s 25 of the Constitution.
Therefore, the appellants’ reliance on Hyundai
Motor Distributors
is misplaced. This limitation is hardly surprising, given that the
government is the public trustee of the nation’s water

resources, with the power to regulate the use and control of all
water in the Republic.[30]
These powers cannot be impeded by landowners withholding consent for
a water use on, over or under their land. And the appellants
do not
suggest that s 24 is unconstitutional.

 

[85]      
In
addition, the appellants wrench the requirement of a good reason in s
24 from its context. The section does not require a good
public
reason. Had that been a requirement, Parliament could have said so.
Neither can the fact it should be a public reason, be implied.
It is
trite that words may be implied in a statutory provision only if
effect cannot be given to the statute as it stands.[31]

 

[86]      
The appellants’ construction is also at odds with the purposes
of the NWA contained
in s 2. These include ensuring that the nation’s
water resources are protected, used, developed, conserved, managed
and controlled,
taking into account not only the promotion of
efficient, sustainable and beneficial use of water in the public
interest, but also
the facilitation of social and economic
development.

[87]      
So, the only question is whether there was a good reason to grant the
water use licence
in the circumstances. Here too, the appellants
misconstrue s 24. The notice of appeal states that the concept good
reason requires
‘that the water use in question is so
compelling that it is in the public interest to override the
landowner’s statutory
and constitutional rights’. But
that is not so. Rather, ‘good reason’ means no more than
that the decision to
grant a licence to use underground water must
have a sound basis, in the light of the purposes of the NWA, and the
particular facts
and circumstances of the case.

 

[88]      
Applied to this case, the Tribunal considered the following facts.
The water uses that
would impact the farm do not involve surface
activities but relate to s 21(c) and (i) of the
NWA, resulting from underground mining and voids under the farm.
During the public participation process in 2015, the second

respondent addressed a letter to the director of the company that
owns the farm Zoetfontein, informing him of the application for
the
licence and inviting him to discuss the issue. Thereafter, the second
respondent sent two further emails to the director, in
which it
confirmed that it had left a pack of documents for him to consider;
that he received the documents; and that he was telephoned
a few
times to set up a meeting. The landowner did not respond to these
letters and emails. The second respondent notified the
DG
accordingly.

 

[89]      
The Tribunal concluded that on its own, s 24 was not decisive of the
grant of a water use
licence. It held that there was good reason to
dispense with the landowner’s consent, having regard to the s
27(1) factors
it had considered; the socio-economic considerations;
and its assessment of the impact of the water use on wetlands, the
farm Zoetfontein,
and other affected properties.

 

[90]      
In these circumstances, it cannot be said that there was no good
reason to issue the water
use licence as contemplated in s 24 of the
NWA. Consequently, the appeal on this ground also fails.

 

Ground
3: No provision for post-closure treatment of contaminated water

[91]      
In sum, this ground is set out in the notice of appeal as follows.
The Tribunal erred in
finding that the water use licence provides for
the treatment of contaminated water after closure of the mine,
because the second
respondent is required to prepare a closure plan
before the end of mining and would then have to apply for amendments
to the licence
to implement closure operations, in terms of ss 49 and
52 of the NWA; and the licence provides for review of its conditions
every
two years. The appellants say that post-closure treatment of
contaminated water could not be provided for in the licence, since
it
is valid for only 15 years and there will be decant of contaminated
water into wetlands and streams in 60-75 years’ time.
Then it
is said that the questions of law raised by this ground are whether
the Tribunal correctly interpreted ss 49, 52 and 28(2)
of the NWA,
and the conditions of the water use licence.

 

[92]      
This appeal
ground also raises questions of fact dressed-up as questions of law.
It appears from the Tribunal’s findings that
there is no
reliance on either s 28 or s 49 for its conclusions on
post-closure treatment of contaminated water.[32]
This is unsurprising, since the appellants’ case before the
Tribunal as set out in its amplified grounds of appeal was ‘the

failure of the DG to authorise two water uses associated with the
closure of the mine, namely the discharging of water containing
waste
into a water resource (s 21(f)
of the
NWA), and disposing of waste in a manner which may detrimentally
impact on a water resource (s 21(g)
of the NWA) (new
second ground of appeal)’.
This is not a question of law.

 

[93]      
As to this complaint, the Tribunal held that the evidence showed that
there was neither
data nor accurate information on the nature and
volumes of water to be treated and disposed of post-closure of the
mine. However,
the licence contains conditions which require the
second respondent to prepare a closure plan five years before the end
of mining,
when details of such volumes and flows would become clear
and guide appropriate conditions.

 

[94]      
Having regard to the grounds of appeal, the Tribunal concluded that
there were three broad
issues that had to be determined, one of which
was the concern relating to post-mining treatment of contaminated
water. It found
that once mining stops, water is likely to fill the
void left behind and eventually cause the underground levels to
rebound and
decant onto the surface. On this issue there was a
dispute as to whether sufficient provision was made for a water
treatment plant
post-closure; and whether financial provision was
made to deal with this long-term impact.

 

[95]      
The Tribunal rejected the claim in the GCS Review and the evidence by
the appellants’
expert that no provision was made for a water
treatment plant post-mining, as being ‘clearly unfounded’.
This plainly,
is a question of fact. The Tribunal stated that the
criticism in the GCS Review of the Delta H report, ‘was
demonstrated
to be scientifically unsound’.

 

[96]      
As regards financial provision for the operation of the plant after
the completion of mining
– also a question of fact – the
Tribunal found that this depended on the nature and volumes of the
water to be treated
and disposed of post-closure of the mine. It
accepted the evidence of Prof Witthüser who used modelling to
simulate decant
rates; and testified that a more confident prediction
of post-closure decant rates and quality could only be achieved based
on
site-specific monitoring and data gathered during the life of the
mine. Prof Witthüser concluded:

‘The confidence in
predicting mining inflows and plume migration risks for later years
or for the mine development can significantly
be improved by
observation data from earlier years and subsequent updates of the
groundwater model.’

 

[97]      
This evidence went unchallenged. It is thus not surprising that it
was never put to Prof
Witthüser nor Mr Smit in
cross-examination, that the DG should have made financial provision
for the post-closure treatment
of contaminated water but failed to do
so. In any event, how was this supposed to be done in the light of
the uncertainty regarding
the nature and volumes of the water to be
treated, and then, as the appellants would have it, for post-closure
contaminated decant
in 65-70 years’ time? It is precisely
because of this uncertainty – yet again, a question of fact –
that the
Tribunal imposed the conditions that the second respondent
provide proof of financial provision made in terms of legislation
other
than the NWA; and that within 60 days of the Tribunal’s
decision and before mining commences, the DG must review the adequacy

of budgetary provision and if necessary, require further financial
security in terms of s 30 of the NWA.

 

[98]      
The appellants’ challenge to Prof Witthüser’s
evidence was that the DG
should not have issued the water use licence
with a Class 1 classification of the potential post-closure impacts
of decant, namely
low confidence in terms of the Australian
Groundwater Modelling Guidelines, because the mine is located in ‘a
highly sensitive
area from a water point of view’. This
challenge (which is also a question of fact) the Tribunal found, was
not only scientifically
unsubstantiated, but was also not established
in evidence. It accepted Prof Witthüser’s Class 1
classification and his
evidence that the confidence in predicted mine
inflows could significantly be improved by observation data from the
earlier years
of mining operations and subsequent updates of the
groundwater model.

 

[99]      
On this issue the Tribunal came to the following conclusion:

‘Having considered
the evidence of Dr Witthüser on the interpretation and
application of the Australian Groundwater Modelling Guideline
(which is the only accepted international standard used to model
groundwater flows), as well as noting that GCS Review was entirely

based on a desktop review of selected aspects of the Delta-H Reports,
these arguments are bereft of scientific substance on this
aspect.
Not in so many words, counsel for the Appellants seemed to concede
the factual and scientific in-exactitude of the GCS
approach and
conclusions.’

 

[100]  
Finally on this ground, the appellants ignore the evidence. First, Mr
Smit testified that he was 95% confident
in the steps taken to manage
the risk of contaminated water escaping the mitigation measures put
in place and causing pollution;
that environmental management in
relation to mining had improved; and that the pillar designs in
current mines are such that they
do not allow a mine to cave in,
thereby causing a greater ingress of water. The appellants’
submission that this evidence
is worthless, because there is ‘no
concrete evidence about future management arrangements’, raises
issues of fact,
not law.

 

[101]  
Second, the Tribunal found, as a fact, that the MPRDA and the NEMA
require financial provisioning for post-closure
rehabilitation of the
mining area; and that the proposed water treatment plant to be used
during mining operations is adequate,
given its modularised design.
This makes the plant flexible and adaptable to changes in the volumes
of water to be treated, and
to future technological advances. The
appellants’ own witness, Mr Johnstone, conceded that the
modularised water treatment
plant was a reasonable solution for the
treatment of contaminated water. He stated that financial provision
should be made for
water treatment, and ‘[w]hether it stays
with the Department of Minerals and Energy or the Department of Water
Affairs, does
not matter’.

 

[102]  
For the above reasons, the appellants’ challenge to the
Tribunal’s decision does not constitute a
question of law. It
follows that on this ground also, the appeal cannot succeed.

 

Ground
4: failure to apply the precautionary principle

[103]  
Before the Tribunal, the appellants’ ground of appeal on this
issue was that the precautionary principle
was significant to the
decision to issue the water use licence, because of fundamental
deficiencies in the second respondent’s
specialist studies.
They also alleged that the principle should have been applied,
because the DG imposed conditions in the licence
requiring the second
respondent to update earlier information and application forms; and a
written motivation that the ecological
risks and impacts of
watercourses are minimal. However, there are no such conditions in
the licence.

 

[104]  
In this regard, the amplified grounds of appeal state:

‘An understanding
of the groundwater impacts of the proposed colliery is the keystone
of any meaningful assessment of the surface
water, wetland and
biodiversity-related impacts of the proposed colliery. This is
because the most significant impacts of the proposed
colliery are,
and are related to, the dewatering of the groundwater aquifers below
and in the vicinity of the proposed mining area
and the decant of
contaminated groundwater and AMD [acid mine drainage] from the
underground mine workings. The Delta H groundwater
assessment is
Atha’s most recent and sophisticated groundwater study.
However, as explained extensively in the revised GCS
review, the
results (predictions) of the Delta H groundwater model are of a low
confidence … .’

 

[105]  
Given that the groundwater model in the Delta H report is of a low
confidence, the appellants stated in their
appeal grounds, it is best
suited for managing low value resources, in terms of the Australian
groundwater modelling guidelines;
and that according to the GCS
review,

‘it is evident that
the area of and surrounding the proposed mining activity is a
moderate to high value groundwater-dependent ecosystem.
In light of
this, a Class 3 model with a high level of confidence is required
before a decision may be taken which will affect
the resource.’

 

[106]  
The appellants went on to say:

‘GCS states
unequivocally that, due to the low confidence in the Delta H
groundwater model, it “should not be used in its current
state
for any decision-making”.’

 

[107]  
However, in
the notice of appeal in the High Court, the appellants’ case
was transmogrified and dressed-up as a question of
law. The notice
states that the Tribunal ‘erred in its interpretation and
application’ of s 2(4)(a)
of the NEMA, including the precautionary principle. The appellants
contend that the Tribunal incorrectly interpreted the words,
‘current
knowledge about the consequences of actions and decisions’; and
the words, ‘limits of current knowledge
about the consequences
of actions and decisions’, in s 2(4)(a)(vii)
of the NEMA; and that it interpreted this provision as casting an
onus of proof or evidential burden on the appellants to
prove (a) a
threat of irreversible environmental damage and (b) scientific
uncertainty as to the environmental damage, which onus
or evidential
burden rests on the developer.[33]

 

[108]  
The notice of appeal also states that the Tribunal incorrectly found
that the conditions for the application of
the precautionary
principle in the NEMA were not present and that it failed to apply
the ‘risk averse and cautious approach’,
contemplated in
s 2(4)(a)(vii). It ought to have found that the necessary
conditions for the application of the precautionary principle had
been established,
which militated against the grant of the water use
licence.

 

[109]  
This change of tack is impermissible. The challenge to the DG’s
decision before the Tribunal, was squarely
founded on ‘fundamental
deficiencies in the specialist studies’ which, the appellants
said, ‘form the backbone’
of the application for the
water use licence. These are questions of fact.

 

[110]  
In dismissing this ground of appeal, the Tribunal said:

‘Our view is also
that the precautionary principle should be considered together with
other principles in section 2(4) of the NEMA,
especially of the
principles of sustainable development. The principle does not require
unequivocal scientific certainty before
any affirmative decisions are
taken, otherwise no development activities would be authorised.
Indeed, the Appellants themselves
repeatedly emphasised that their
case was not that “as
a matter of law there is an absolute prohibition on the authorisation
such as this ever being granted.”[34]
The
perception of risk and uncertainty advanced by the appellants are
grounded in the GCS Review findings and other expert reviews,[35]
which have been demonstrated in evidence to be shallow and lacking by
way of ground truthing. Equally, however, the Respondents’

scientific evidence does not, and cannot, provide absolute levels of
comfort – the threshold is what risk is tolerable and
whether
reasonable measures are in place to manage the identified impacts.’

 

[111]  
It follows
that the appellants challenge to the Tribunal’s decision based
on the precautionary principle raises purely questions
of fact.
Contrary to the submission in their heads of argument, they asked the
High Court to revisit the factual findings made
by the Tribunal, in
the light of the GCS Review. Likewise, the argument that the Tribunal
‘failed to properly apply the environmental
principles’[36]
– an attack no longer confined to the precautionary principle –
given its finding that the second respondent’s
scientific
evidence did not provide absolute levels of comfort in relation to
tolerable risks, and whether the measures proposed
to manage those
risks are reasonable, are questions of fact. That ought to have been
the end of the appellants’ case on this
ground in the High
Court.

 

[112]  
Even the appellants’ challenge that the Tribunal committed ‘an
error of law based on the application
of the environmental
principles’, raises questions of fact dressed-up as a question
of law. That challenge is founded on
‘the contrasting evidence
of Dr Le Maitre and Prof Witthüser; the Tribunal’s factual
findings that the decant
was manageable, based on Mr Smit’s
evidence; and its acceptance of Prof Witthüser’s evidence
that the confidence
in predicted mine inflows could significantly be
improved by observation data obtained during mining operations. On
these aspects
the Tribunal found, as a fact, that the mitigation
measures proposed by the second respondent (which were revised on
various occasions
after the DG raised concerns) ‘are reasonable
and technically adequate to deal with the impacts of dewatering,
decant, and
management of wastewater from the mine’.

 

[113]  
In this
case, the precautionary principle itself and its scope are not in
issue. What is in issue is the factual foundation for
the application
of the principle. That is a question of fact.[37]
For these reasons this ground of appeal also fails.

 

Costs

[114]  
The
appellants submit that they are insulated from costs orders by virtue
of two considerations concerning costs awards in constitutional

litigation: (i) the Biowatch
principle, namely that the High Court proceedings were instituted to
vindicate environmental rights under s 24 of the Constitution,
which
are genuine and not frivolous;[38]
and (ii) they acted reasonably in the protection of the environment,
as contemplated in s 32(2) of the NEMA.[39]
They also contend that the High Court’s finding in the first
part of its judgment that public interest law centres act in
the
public interest when they facilitate the enforcement of rights under
section 38(d)
of the Constitution, precludes a finding of frivolity or
vexatiousness against them. However, as stated above, this finding
was
made in an entirely different context and does not assist the
appellants.

 

[115]  
Neither
does Biowatch
assist the appellants. The Constitutional Court, after stating the
general rule in constitutional litigation that an unsuccessful

litigant ought not to be ordered to pay costs to the State, should
not be departed from simply because that party is able to pay
costs,
went on to say:[40]

‘Conversely, a
party should not get a privileged status simply because it is acting
in the public interest or happens to be indigent.
It should be held
to the same standards of conduct as any other party, particularly if
it has had legal representation. This
means it should not be
immunised from appropriate sanctions if its conduct has been
vexatious, frivolous, professionally unbecoming
or in any other
similar way abusive of the processes of the court.’

 

[116]  
That is the case here. The appellants, who throughout have been
represented by senior and junior counsel, vexatiously
pursued the s
149(1) appeal, which has no merit. This, after they had enjoyed the
benefit of an appeal against the DG’s decision
to issue the
water use licence, in the form of a complete rehearing before the
Tribunal.

 

[117]  
In this
regard, the description of a ‘vexatious proceeding’ by
Lord Bingham CJ in Attorney-General
v Barker,[41]
is instructive:

‘The
hallmark of a vexatious proceeding is in my judgment that it has
little or no basis in law (or at least no discernible basis);
that
whatever the intention of the proceeding may be, its effect is to
subject the defendant to inconvenience, harassment and expense
out of
all proportion to any gain likely to accrue to the claimant; and that
it involves an abuse of the process of the court,
meaning by that a
use of the court process for a purpose or in a way which is
significantly different from the ordinary and proper
use of the court
process.’

 

[118]  
The appeal lodged by the appellants has little or no basis in law. As
demonstrated above, it does not raise a
question of law. As to the
proper construction of s 24 of the NWA, the appellants’ real
complaint is the absence of proof
of the landowner’s consent.
This challenge was also opportunistic: the appellants knew or must
have known that the licence
was issued subject to the condition that
the relevant landowner’s consent had to be obtained before
mining commences.

 

[119]  
In their notice of appeal, the appellants raised no less than 12
grounds of appeal, dressed-up as questions of
law. A recurring theme
in the notice is whether, what in truth is a question of fact, that
question ‘is a relevant factor
in in the opening part of
s 27(1) or s 27(1)(a), (b), (c), (d),
(e), (f), (g), (i) or (j) of the
NWA’, in order to disguise it as a question of law. As stated,
the appellants persisted with only five grounds of appeal
in the High
Court. In this Court they advanced only four out of the 12 grounds of
appeal, which have been found to lack merit.
What is more, in
advancing these grounds, they ignored the evidence and sought to
evade the bases on which they had challenged
the impugned decision
before the Tribunal. And the ground that the High Court was biased,
was opportunistic and stillborn.

 

[120]  
The
appellants lodged the s 149(1) appeal despite a review application
that they launched against the same parties, which is pending
in the
Pretoria High Court. In the review they challenge the DG’s
decision to issue the water use licence on the same factual
grounds;
and the second respondent is obliged to oppose that application if it
wants to retain its water use licence.[42]
Public funds will again be expended in the DG’s opposition to
that application.

 

[121]  
The appellants lodged this appeal regardless of the consequences: the
inconvenience to and exorbitant costs that
would be incurred by the
respondents (the appellants filed a record consisting of a core
volume and 26 volumes comprising more
than 5000 pages); and in
particular, the harassment of the second respondent, an innocent
party, which has been dragged to court
and opposed the appeal in
order to preserve its licence.

 

[122]  
In 2011 the second respondent was invited to invest in South Africa.
It has made an investment of US$ 40 million
in equity and prospecting
rights to engage in coal mining. It has spent US$ 61 million solely
on specialist studies, to secure
the necessary authorisations. More
than ten years later no mining has started and the second respondent
has not realised any return
on its investment. The application for
the water use licence alone took some four years, given the
specialist studies required.
Concerning costs, the appellants pay no
regard to ‘the investments already made and to be made by the
water user in respect
of the water use in question’, as
envisaged in s 27(1)(h) of the NWA.

 

[123]  
The uncontradicted evidence of Mr Triparthi is that prior to the
declaration of the Mabola Protected Environment,
the second
respondent had done environmental due diligence before acquiring the
prospecting right (which had been in continuous
existence for 20
years), because of historical mining in the entire area. He said that
there were consultations between the second
respondent, the relevant
member of the Executive Council, the Mpumalanga Tourism and Parks
Agency and various non-governmental
organisations, including the
World Wildlife Fund. The outcome of these consultations was that
mining and environmental protection
could coexist in the area.
However, once the relevant area was declared a protected environment,
the entire narrative changed.

 

[124]  
In the
result the applicants, together with other environmental
organisations, launched no less than five applications against the

second respondent, to prevent mining.[43]
These applications include proceedings by the appellants to review
and set aside: (i) the Tribunal’s decision to dismiss
the
appeal against the issuance of the water use licence;[44]
and (ii) the Municipality’s decision granting a change of land
use from agricultural to mining and ancillary purposes.[45]
In these circumstances, the appellants’ submission that the
second respondent should be denied its costs, is untenable.[46]
Opponents who are harassed by the worry and costs of vexatious
litigation, which in most cases are exorbitant, are entitled to

protection.

 

[125]  
Another factor regarding costs, is that the members of the local
community, who are in dire need of upliftment
and jobs and support
the proposed mine, have been prejudiced by the appellants’
conduct in launching this appeal. The Tribunal
observed that the
appellants were preoccupied with the environmental impacts of the
mine, to the virtual exclusion of social and
economic impacts of
sustainable development. They presented no site-specific information
(positive or negative) relating to the
socio-economic impacts of the
water uses if authorised, or of the failure to authorise the water
uses, as contemplated in s 27(1)(d) of the NWA.
Mr Triparthi’s evidence that if mining commences, there
would be at least R700 million of capital expenditure
over a period
of three years; that it would generate employment for more than 500
people; and that it would stimulate the local
economy and small and
medium enterprises, was not challenged. And Mr Nene testified that
unlike the CER, the community ‘lack[s] money to fight in the
same system, the same courts’.

 

[126]  
There are further considerations that justify a costs award against
the appellants. The respondents ask for an
order that the appellants
pay the costs incurred in the High Court and on appeal. The DG’s
costs are paid out of public funds,
ultimately by taxpayers. In
addition to an unmeritorious appeal and the vexing of the second
respondent, scarce and valuable judicial
resources have been wasted
on a misconceived appeal, to the detriment of other litigants with
cases which have real merit. All
of this, in the specific
circumstances of this case, constitute an abuse of the court process.
Judicial resources in this country
are barely sufficient to afford
justice without unreasonable delay in deserving cases, and should not
be wasted on misconceived
litigation. And these resources will again
be utilised in the hearing of the appellants’ review
application of the Tribunal’s
decision in the Pretoria High
Court.

 

[127]  
In all of this, the appellants ask this Court to make an order
overturning the decisions of the High Court and
the Tribunal and to
replace them with a decision refusing the water use licence. Given
the expertise of the Tribunal and the nature
of the matter, this
submission cannot seriously be made.

 

[128]  
There comes a time when it is right for a court to hold an
organisation which brings vexatious proceedings and
claims to act in
the interests of the public and the environment, to the same
standards of conduct as any other litigant. For all
of the above
reasons, the appellants have not shown why they should not be held to
these standards. The appeal is dismissed with
costs, including the
costs of two counsel where so employed.

 

A
SCHIPPERS

JUDGE
OF APPEAL

Appearances:

 

For
appellants:              
A Dodson SC

Instructed
by:                
Centre for Environmental
Rights, Cape Town

                                      

Phatshoane Henney
Attorneys, Bloemfontein

                                    

For first
respondent:       M Mphaga SC with M
Mathaphuna

Instructed
by:                 
The State Attorney,
Pretoria

                                       

The
State Attorney, Bloemfontein

 

For
second respondent:   R Zimerman

Instructed
by:                  
Taitz & Skikne Attorneys, Johannesburg

                                       EG
Cooper Majiedt Inc Attorneys, Bloemfontein

 

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