Centre for Environmental Rights – Advancing Environmental Rights in South Africa

The judgment of the Supreme Court of Appeal can be found here.

• Neutral citation: Kangra Coal (Pty) Ltd v The Trustees of the Time Being of the Corneels Greyling Trust and Others (1052/2023) [2025] ZASCA 09
• Case number: 1052/2023
• Coram: Mucumie, Hughes, Weiner and Molefe JJA and Chili AJA
• Date delivered: 6 February 2025
• Outcome:
  • The appeal was upheld and the order of the High Court set aside.
  • Kangra Coal is no longer interdicted from undertaking water use activities in terms of section 12 of the National Water Act 36 of 1998 at its underground coal mine.

Summary

This is an appeal against a judgment and order of the High Court which revolves around whether the respondents, who are commercial farmers, can interdict Kangra Coal, a mining company, from continuing to use water for mining activities pending an appeal against its water use licence.

Facts

Kangra operates an underground coal mine near Piet Retief in Mpumalanga. It applied to the Department of Water and Sanitation (DWS) for a water use license (WUL) for associated infrastructure and underground mining at an adit (underground horizontal passage used for drainage and access) which it uses to access an underground coal seam.

The adit land used by Kangra is situated near the properties owned by the commercial farmer respondents. They objected to the application for the WUL, citing among other reasons that they depend on the water from many natural springs in the area to irrigate and grow commercial crops, to rear their livestock for commercial and domestic purposes. They contended that Kangra’s water use would reduce the water flow in the area, pollute the water resources and result in acid mine drainage which will impact the quality of the water resources. They argued that Kangra’s water use was a threat to the ground and surface resources on which they depend.

Despite the objections, DWS granted the WUL to Kanga. The farmers then appealed this decision to the Water Tribunal. Despite the lodging of the appeal, Kangra continued to use water according to its WUL.

In the Water Tribunal, the farmers argued that:

• The WUL was granted without the landowner’s consent.
• DWS failed to consider all the relevant factors required by s 27 of the NWA.
• DWS failed to apply the precautionary principle given the material gaps and deficiencies in the WUL application.
• The public participation process concluded was inadequate, in contravention of the NWA and WUL regulations.
• Not all proposed water uses were authorised by the WUL.

Before the Tribunal decided the appeal, the farmers successfully approached the high court for an interdict preventing Kangra from using water for mining at the adit.

Kangra then approached the SCA arguing that:

• The farmers had no legal standing to seek the interdict and had failed to establish how they would suffer harm if the interdict was not granted;
• The farmers’ appeal against the decision to grant the WUL was late and therefore invalid and that it did not have the effect of suspending the WUL; and
• The granting of the interdict would cause Kangra to suffer more harm than the respondents.

The law

The court reiterated the requirements for a final interdict. An applicant for such an order must show: a clear right, an injury actually committed or reasonably apprehended, and the absence of similar protection by any other ordinary remedy.

The SCA found that the farmers had a clear right to the protection of the environment under section 32(2)(1)(a) of NEMA. The court however criticised the farmers for not expressly pleading their legal standing in the founding papers, invoking the Constitutional Court’s adage of “The [applicant] must stand or fall by their founding papers” since they had not done so explicitly.

Turning to the next interdict requirement, the court was not convinced that the farmers had alleged sufficient harm or provided evidence to support a reasonable apprehension of harm. This meant that the application for an interdict failed.

Outcome

The court made the following order:

1. The appeal is upheld with costs including the costs of two counsel where so employed.
2. The order of the high court is set aside and substituted with the following:

‘The application is dismissed with costs, including the costs of two counsel where so employed.’

The judgment of the Water Tribunal (regarding an application for condonation) was still pending at the date this judgment was handed down. The court was critical of the parties approaching the court in light of this outstanding judgment. However, the court was also extremely critical of the Water Tribunal, holding:

Lastly, it is clear on a reading of s 148(3) of the NWA that the Tribunal did not have the power to consider the application for condonation post facto. The Minister decides whether to grant the WUL. Until that decision has been rescinded or set aside on any ground by a court of law, it stands. No other avenue can be pursued to undermine the decision by the Minister which can amount to such incompetent action being legitimatised by a court of law. The Tribunal ought not to have entertained the application for condonation or even extended the period within which the condonation should have been sought. It simply had no jurisdiction to do so.