APPELLANTS’ HEADS OF ARGUMENT IN THE APPEAL IN TERMS OF SECTION 149 OF THE NATIONAL WATER ACT NO. 36 OF 1998

This document contains the Appellants' Heads of Argument filed by the Centre for Environmental Rights on behalf of the Endangered Wildlife Trust and the Federation for a Sustainable Environment. The appeal, brought under section 149 of the National Water Act (NWA), challenges a Water Tribunal decision that dismissed an appeal against the granting of a water use licence (WUL) to Atha-Africa Ventures (Pty) Ltd for the proposed Yzermyn Underground Coal Mine. The appellants argue that the Water Tribunal erred on several questions of law, including the failure to consider the strategic importance of the mine area, the absence of landowner consent, the misapplication of the precautionary principle, the lack of post-closure water treatment provisions, and the misapprehension of the burden of proof regarding socio-economic impacts.

• The proposed Yzermyn Underground Coal Mine is located in an area of high environmental sensitivity, identified as a Strategic Water Source Area (SWSA), part of a protected environment under the National Environmental Management: Protected Areas Act, and an endangered ecosystem under the Biodiversity Act.
• The mine is expected to cause three primary water impacts: 'dewatering' of aquifers which affects springs and wetlands, the 'decant' of contaminated water (including acid mine drainage) post-closure, and the accumulation of toxic water in groundwater plumes before decant occurs.
• The appellants argue the Water Tribunal erred by dismissing evidence of the mine area's strategic importance as irrelevant, claiming the Tribunal wrongly held that national-level studies (like SWSA reports) are not applicable to project-level decisions.
• The appellants contend that the WUL was granted in violation of section 24 of the NWA because the owner of the farm Zoetfontein 94 HT did not consent to the use of underground water, and no 'good public reason' was provided to override this requirement.
• The appellants claim the Water Tribunal failed to apply the precautionary principle from NEMA, which requires a risk-averse approach when scientific knowledge is limited. They cite 'low confidence' in the groundwater assessments and uncertainty regarding the adequacy of mitigation for acid mine drainage.
• The WUL is criticized for failing to provide for the post-closure treatment of contaminated water, as it is only valid for the 15-year life of the mine and lacks financial security for long-term water treatment.
• The appellants argue the Water Tribunal wrongly shifted the burden of proof regarding socio-economic impacts onto the appellants, whereas the statutory duty of justification lies with the licence applicant (Atha).

APA

Centre for Environmental Rights (n.d.). APPELLANTS’ HEADS OF ARGUMENT IN THE APPEAL IN TERMS OF SECTION 149 OF THE NATIONAL WATER ACT NO. 36 OF 1998. https://cer.org.za/wp-content/uploads/2021/03/Appellants-heads-of-argument.pdf?x21779

Chicago

Centre for Environmental Rights. APPELLANTS’ HEADS OF ARGUMENT IN THE APPEAL IN TERMS OF SECTION 149 OF THE NATIONAL WATER ACT NO. 36 OF 1998. n.d. https://cer.org.za/wp-content/uploads/2021/03/Appellants-heads-of-argument.pdf?x21779.

Wikipedia

{{cite report |author=Centre for Environmental Rights |title=APPELLANTS’ HEADS OF ARGUMENT IN THE APPEAL IN TERMS OF SECTION 149 OF THE NATIONAL WATER ACT NO. 36 OF 1998 |url=https://cer.org.za/wp-content/uploads/2021/03/Appellants-heads-of-argument.pdf?x21779 |access-date=17 August 2026 |via=Climate Insights Directory}}

BibTeX

@techreport{centreforenvironmentalrightsndappellants, author = {{Centre for Environmental Rights}}, title = {{APPELLANTS’ HEADS OF ARGUMENT IN THE APPEAL IN TERMS OF SECTION 149 OF THE NATIONAL WATER ACT NO. 36 OF 1998}}, institution = {Centre for Environmental Rights}, url = {https://cer.org.za/wp-content/uploads/2021/03/Appellants-heads-of-argument.pdf?x21779}, urldate = {2026-08-17}, note = {Indexed by Climate Insights Directory} }