The billion-rand Western Cape phosphate mine Kropz Elandsfontein, which has come under criticism for how it was awarded its mining right, is also being challenged on the issuing of its water use licence.
An environmental non-governmental organisation, the West Coast Environmental Protection Association (WCEPA), lodged an appeal with the Water Tribunal, which found in November 2017 that there was a “prima facie basis” to challenge the licence.
In addition, the tribunal found that temporary permission granted by the Department of Water and Sanitation in December 2017 was “questionable”.
The National Water Act only makes “provision for one right to water the Reserve. This is the water required for basic human needs and to maintain water ecosystem functioning. Except for the water required for this Reserve and basic human needs use, all other water uses must be authorised by the Department of Water and Sanitation or a Catchment Management Agency (CMA).”
This act requires mining companies to apply for a water use licence.
According to its website, the WCEPA is “dedicated to protecting the Elandsfontein Aquifer in the heart of the West Coast National Park”.
A key concern among others regarding the Kropz mine is the impact mining will have on this aquifer, which runs below the mining site. Phosphates and salts leaching from the mine into the aquifer are seen as a risk.
The WCEPA said the Water Research Commission had classified the Elandsfontein Aquifer, Langebaan Road Aquifer and Langebaan Lagoon as one system. The Langebaan Lagoon is a Ramsar site, which is a wetland of international importance under the Ramsar Convention, a Unesco intergovernmental environmental treaty.
In its appeal to the tribunal, the WCEPA argued in legal papers that the water department had awarded the licence in April 2017 despite:
- Its own national water resource planning and resource protection units recommending that the licence not be granted;
- The groundwater unit making recommendations that a number of conditions be included in the licence; and
- Kropz not holding a public participation process ahead of the issuing of the water use licence.
Tumai Murombo, a member of the Water Tribunal and a law professor at the University of the Witwatersrand, found the judgment’s assertions that mining activity will have “no impact” or “no environmental damage” – on the face of it – to be “unrealistic”.
He said it should be subjected to further analysis, “which can only happen in a proper appeal hearing”.
Murombo added that the “scientific expert evidence and reports before the responsible authority are open to expert challenge”. He said the reports from the WCEPA showed “possible gaps and uncertainties in the information and data that was presented to the responsible authority”.
He also found that the water department’s decision to grant the licence was “inconsistent” with the Record of Recommendations, which contains assessments and evaluations of water licence applications by the department’s specialist units.
Murombo says this inconsistent decision means there “is prima facie challengeable on appeal”.
He noted the lack of public consultation conducted by Kropz, saying it is an “essential element of fair environmental decision-making”.
Kropz had argued that the National Water Act provides that public participation should only be done when the water department has issued a directive to that effect, which they did not.
Kropz said the department might have regarded the “extensive public participation” in respect of the environmental impact assessment for the mining right as being sufficient.
Kropz and the Department of Mineral Resources, meanwhile, both say that the water department considered these objections while processing Kropz’s water use licence in 2016 and 2017.
In Parliament, then minister of water and sanitation Gugile Nkwinti was questioned in April 2019 about mines that were not compliant with their water licence conditions.
In the minister’s response, Kropz’s Elandsfontein operation was listed as one of the mines that was noncompliant.
The minister responded by saying that “sampling and groundwater quality and selected parameters” are not being monitored continually.
This matter is still to go before a full Water Tribunal hearing, which was originally scheduled for 1 April but has been pushed out to later this year.
New Frame has previously reported that during the processing of Kropz’s mining right application, the water department communicated its objections to the awarding of the mining right to the mineral resources department on three separate occasions.
A mineral resources department whistleblower told New Frame that the department “must have been under tremendous pressure” as a result of its authorisation of Kropz’s mining right in late 2014.
Water and sanitation department spokesperson Sputnik Ratau repeatedly evaded certain questions during the weeks of communication with New Frame. The department still has not responded to the allegation that its own national water resource planning and resource protection units were against granting the water use licence to Kropz.
It also did not comment on the “questionable” temporary water use permission. Kropz has received temporary permission to continue pumping water that flows underground into a large and environmentally sensitive lagoon at Langebaan.
This approval came under scrutiny in Murombo’s judgment.
He noted that just shy of 10 months after Kropz had applied for its water use licence and five months before it would be officially granted, the water department’s deputy director general of regulation, Anil Singh, granted Kropz “temporary permission” in January 2017.
Murombo said that Singh’s letter granting temporary permission does not explain the legal basis on which it was granted.
“The temporary permission referred to by Kropz as having been granted by the responsible authority appears to be questionable as only a water use licence or general authorisation allows a person to use water,” wrote Murombo.
According to minutes from water and sanitation parliamentary portfolio committee meetings in early 2018, Singh was suspended from the water department in June 2017 for an incident in April 2016. His suspension was lifted in November 2017, but he did not return to work.
Singh contested the allegations against him by lodging a dispute in the Labour Court.
Ratau said there was no connection between the Kropz temporary water use licence and Singh’s suspension. “Mr Singh was suspended as a precautionary measure in terms of the disciplinary code and procedure for senior management service members.”
Ratau did not specify what “serious offence” Singh was suspected of having committed, but did tell New Frame that his “precautionary suspension” was lifted on 20 November 2017 and that Singh’s disciplinary hearing continued until March 2018, when it was put on hold “pending the receipt of a legal opinion that the department sought”.
Ratau said the case had proceeded since June 2018 and was now nearing its conclusion. “Mr Singh is still employed by the department in the capacity of deputy director general.”
The water department did not comment on the appeal the WCEPA was pursuing. But Ratau said the water department issued the licence and that, after the WCEPA’s appeal, this water use licence was suspended.
”After all parties’ arguments were made, the Former Minister of Water and Sanitation wrote a letter to the Licensee informing them that the suspension of their WUL [water use licence] was lifted and that they could continue with their activities,” said Ratau.
“The letter by the Minister had a condition that the WUL activities would and must be monitored frequently by the WRS (DWS Western Cape Region), which to my understanding was done.”
In May 2019, the Department of Mineral Resources became the Department of Mineral Resources and Energy, and the Department of Water and Sanitation became the Department of Human Settlements, Water and Sanitation.