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Judicial Review Application I DU Pat-. - TEL 086 X.00 0779 KRUYSHAAR_ IN THE HIGH COURT OF SOUTH AFRICA GROUNDWORK VOt 4.* . • Third Applicant Fourth Applicant GAUTENG DIVISION, Fifth Applicant Sixth Applicant PRETORIA CASE NO: .5-C; Seventh Applicant - 7 7 ci/7 Eighth Applicant In the matter between: st;.. • MINING AND ENVIRONMENTAL JUSTICE /0(9 First Respondent a o A P N COMMUNITY NETWORK OF SOUTH AFR e:-cr / ?First Applicant R Second Respondent e t :e 0 SThirdecond Respondent Applicant EARTFILIFE AFRICA, JOHANNESBURG BIRDLIFE SOUTH AFRICA ENDANGERED WILDLIFE TRUST FEDERATION FOR A SUSTAINABLE ENVIRONMENT ASSOCIATION FOR WATER AND RURAL DEVELOPMENT BENCH MARKS FOUNDATION and MINISTER OF ENVIRONMENTAL AFFAIRS MINISTER OF MINERAL RESOURCES ATHA-AFRICA VENTURES (PTY) LTD THE MABOLA PROTECTED ENVIRONMENT LANDOWNERS ASSOCIATION Fourth Respondent MEC FOR AGRICULTURE, RURAL DEVELOPMENT, LAND AND ENVIRONMENTAL AFFAIRS, MPUMALANGA Fifth Respondent NOTICE OF MOTION 1 TAKE NOTICE that the applicants intend to make application to this Court for orders in the following terms: Part A Conditional on the third respondent giving notice of its intention to commence mining or any mining-related activities in terms of the undertaking recorded in the order of this Court made on 28 June 2017 in case number 41970/2017 - 1 Dispensing with the forms and service provided for in the rules of court and directing that the matter be heard as a matter of urgency; 2 Interdicting and restraining the third respondent from conducting any mining and any activities preparatory, ancillary or incidental to mining, including without limitation any cutting or clearing of vegetation, any establishment of roads, any construction or installation of buildings, infrastructure or equipment and any drilling, excavation, digging, removal of soil, coal, ore or any mineral, on the farms Remainder of Kromhoek 93 HT, Portion 1 of Kromhoek 93 HT, Goedgevonden 95 HT, Remainder of Yzermyn 96 HT and Portion 1 of Yzermyn 96 HT, pending final determination of the relief sought in Part B below, including any appeal to any court against the grant or refusal of such relief; 3 Directing that the third respondent, together with such other respondents as may oppose the application, pay the costs of the 2 application jointly and severally, such costs to include the costs of two counsel; 4 Granting further and/or alternative relief. Part B 5 Reviewing and setting aside the decision of the first respondent on 20 August 2016 to grant the third respondent written permission to conduct commercial mining in the Mabola Protected Environment in terms of section 48(1)(b) of the National Environmental Management: Protected Areas Act, No. 57 of 2003 ("NEMPAA"); 6 Reviewing and setting aside the decision of the second respondent on 21 November 2016 to grant the third respondent written permission to conduct commercial mining in the Mabola Protected Environment in terms of section 48(1)(b) of NEMPAA; 7 Remitting the third respondent's application for written permission to conduct commercial mining in the Mabola Protected Environment in terms of section 48(1)(b) of NEMPAA to the First and Second Respondents for reconsideration; 8 Directing the first and second respondents in reconsidering the third respondent's application for written permission to conduct commercial mining in the Mabola Protected Environment in terms of section 48(1)(b) of NEMPAA to consider all relevant considerations and — 3 8.1 to comply with sections 3 and 4 of the Promotion of Administrative Justice Act, No. 3 of 2000; 8.2 to take into account the interests of local communities and the environmental principles referred to in section 2 of the National Environmental Management Act, No. 107 of 1998 ("NEMA"); 8.3 to defer any decision in terms of section 48(1)(b) of NEMPAA until after the decision of — 8.3.1 the applicants' statutory appeal to the fifth respondent in terms of NEMA against the environmental authorisation granted to the third respondent; 8.3.2 the applicants' statutory appeal to the Director General: Department of Mineral Resources in terms of the Mineral and Petroleum Resources Development Act, No. 28 of 2002 against the approval of the third respondent's environmental management programme; and 8.3.3 the applicants' statutory appeal to the Water Tribunal in terms of the National Water Act, No. 36 of 1998 against the decision to issue a water use licence to the third respondent; 8.4 without detracting from their obligation to consider all relevant circumstances, not to grant permission to conduct commercial 4 mining in the Mabola Protected Environment in terms of section 48(1)(b) of NEMPAA unless — 8.4.1 a management plan for the MPE has been approved by the fifth respondent in terms of section 39(2) of NEMPAA; 8.4.2 the management plan's zoning of the area in which the intended mining is to take place permits such mining; 8.4.3 exceptional circumstances have been shown by the third respondent to exist which justify the mining of coal within the Mabola Protected Environment; and 8.4.4 the third respondent has made full and secure financial provision for the complete rehabilitation of the Mabola Protected Environment in consequence of the coal mining, upon termination of the mining, including the treatment of any polluted water that may be decanting from the mine at the time of termination or that may decant from the mine at any time in the future; 9 Directing the first, second and third respondents to pay the costs of this application, jointly and severally, the one paying the other to be absolved, such costs to include the costs of two counsel; 10 Granting further and/or alternative relief. 5 TAKE NOTICE FURTHER that the affidavits of THELMA THANDEKILE NKOSI, VANESSA STONE, STEPHANUS PETRUS MALAN and MARK ADRIAN BOTHA will be used in support of this application. TAKE NOTICE FURTHER that the first and second respondents are hereby called upon respectively to deliver to the Registrar of this Honourable Court, within fifteen days after receipt of this notice of motion, the records of proceedings pursuant to which the decisions in paragraphs 5 and 6 respectively were taken (including all documents, letters, memoranda, reports, recommendations, minutes and other materials which were before the first and second respondents when their decisions were taken), together with such reasons as the first and second respondents are by law required or desire to give or make, and to notify the applicants that they have done so. TAKE NOTICE FURTHER that the applicants have appointed the offices of their attorneys, the Centre for Environmental Rights, care of their 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 if the respondents intend opposing this application they are required — (a) within fifteen (15) court days after receipt of this Notice of Motion, or if service is effected on a respondent at a place more than 100 miles from the court, then within twenty-one (21) days after receipt of the 6 Notice of Motion, or within fifteen (15) days of any amendment of it, to deliver notice to the applicants that they intend to do so and to appoint in such notice an address within fifteen kilometres of the office of the Registrar of this Honourable Court at which they will accept notice and service of all process in these proceedings; and (b) within thirty (30) court days after the expiry of the time referred to in rule 53(4) of the Uniform Rules of this Honourable Court, to deliver any affidavits they may desire to answer the allegations made by the applicants. TAKE NOTICE FURTHER that if no notice of intention to oppose is given, this application will be set down for hearing by this Honourable Court on .k.:77) 24017 or as soon after that as Counsel may be heard. DATED at PRETORIA on this theclifftn day of JULY 2017 CENTRE F ENVIRONMENTAL RIGHTS Applicants' A torneys 2nd Floor, Springtime Studios 1 Scott Road Observatory Cape Town Tel: 021 447 1647 Ref: Catherine Horsfield (Email: [email protected]) CIO: DU PLESSIS AND KRUYSHAAR INCORPORATED Suite No. 2, Route 21 Corporate Park 118 Sovereign Drive Irene Pretoria 7 Co Tel: 0861 000 779 Fax: 086 548 0837 Email: kruyshaardupkruys.co.za Ref: Rentia Kruyshaar TO: THE REGISTRAR of the above Honourable Court PRETORIA AND TO: MINISTER OF ENVIRONMENTAL AFFAIRS 1st Respondent Environment House 473 Steve Biko Road (Cnr. Steve Biko and Soutpansberg Roads) Arcadia Pretoria Fax: 012 328 4254 Email: [email protected] C/O THE STATE ATTORNEY SALU Building 316 Thabo Sehume Street PRETORIA Tel: 012 309 1500 Fax: 012 309 1649 AND TO: MINISTER OF MINERAL RESOURCES 2nd Respondent 4th Floor, Building 2C Trevenna Campus 75 Meintjies Street Cnr Meintjies and Francis Baard Streets Sunnyside Pretoria Fax: 012 444 3145 Email: pieter.albertsdmr.cov.za C/0 THE STATE ATTORNEY SALU Building 316 Thabo Sehume Street PRETORIA Tel: 012 309 1500 Fax: 012 309 1649 8 cal AND TO: ATHA-AFRICA VENTURES (PTY) LTD 3rd Respondent 8th Floor, Sinosteel Plaza 159 Rivonia Road Sandton JOHANNESBURG Fax: 011 784 7467 Email: morgam.munsamvAathadroup.in AND TO: THE MABOLA PROTECTED ENVIRONMENT LANDOWNERS ASSOCIATION 4th Respondent Farm Schoongezicht VOLKSRUST Mpumalanga Tel: 084 3206 071 Email: malanspavodamail.co.za AND TO: MEC FOR AGRICULTURE, RURAL DEVELOPMENT, LAND AND ENVIRONMENTAL AFFAIRS, MPUMALANGA 5th Respondent 1st & 2nd Floor, Building No. 6 Riverside Park 7 Government Boulevard Extension 2 Nelspruit C/0 THE STATE ATTORNEY SALU Building 316 Thabo Sehume Street PRETORIA Tel: 012 309 1500 Fax: 012 309 1649 Email: akoojeeaaempg.gov.za 9 IN THE HIGH COURT OF SOUTH AFRICA 10 GAUTENG DIVISION, PRETORIA CASE NO: _ In the matter between: MINING AND ENVIRONMENTAL.
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