ENVIRONMENTAL NGOs TAKE A HIT
WATER USE LICENCE APPEAL TURNS UGLY
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)
The Endangered Wildlife Trust and the Federation for a Sustainable Environment (The Appellants) lodged an appeal against the issue of a Water Use Licence (WUL) to Atha-Africa Ventures (The Second Respondent) at the Water Tribunal.
The Second Respondent is the owner of Yzermyn Underground Coal Mine, located in Mpumalanga.
The Water Tribunal subsequently dismissed the appeal, whereafter the Appellants appealed the Tribunal’s decision to the Gauteng Division of the High Court, Pretoria.
The High Court appeal was dismissed with costs and the court refused the Appellants’ application for leave to appeal. The Appellants thereafter approached the Supreme Court of Appeal (SCA).
At the SCA, the Appellants submitted that the High Court was biased. This was based on the contention that the judgment consisted largely of the heads of argument of the Second Respondent’s counsel which the High Court copied verbatim.
APPEALS AGAINST THE TRIBUNAL’S DECISION
An appeal against the Water Tribunal’s decision is confined to a “question of law“. However, this does not preclude an Appellant from pursuing a High Court review application. This issued was dealt with in a previous article of mine…
The Appellants, however, pursued both a review application (which is currently pending) and the appeal.
SCA DELIVERS KNOCK-OUT PUNCH
The SCA dismissed the appeal, and found that:
The Appeal by the Appellants, save for one ground of appeal, before the High Court, did not concern questions of law. They concerned questions of fact dressed up as questions of law.
The Appellants vexatiously pursued an appeal which had no merit.
The ground or allegation that the High Court was biased - was opportunistic and stillborn.
The Appellants lodged the appeal, despite a review application that they launched against the same parties , which is currently pending.
In dismissing the Appeal, the SCA also awarded costs against the Appellants, thus departing from the Biowatch Principle and s32(2) of NEMA:
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.
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