Coal mine accused of making “manifestly scurrilous” allegations against opponents

Uthaka Energy plans to mine coal in the Mabola Protected Area of Mpumalanga.

• A coalition opposing a new coal mine in the Mabola Protected Environment say the mine makes “scandalous, vexatious and irrelevant” claims about them in its court papers.
• The coalition wants the claims made by Uthaka Energy struck from the record.
• The coalition is in court seeking to reverse changes to the boundaries of the protected environment that it says were made to allow for coal mining.
• Uthaka Energy accuses the coalition of applying a “not bona fide” strategy to oppose coal mining everywhere.

A coalition opposing the development of a new coal mine in a protected area has brought an application to have what it calls “scandalous, vexatious and irrelevant” claims about it made in an affidavit by Uthaka Energy struck from the record.

This forms a subsidiary application made during the recent hearing of the coalition’s main suit: a review and rescind application to reverse recent changes to the boundaries of the Mabola Protected Environment near Wakkerstroom, Mpumalanga, that were unlawfully made to facilitate the establishment of the mine, the coalition says.

Uthaka Energy (previously Atha-Africa Ventures) has been trying for the past decade to develop its proposed Yzermyn coal mine. It has been challenged at every step by a coalition of eight faith, environmental and civic organisations opposed to the mine project.

Uthaka Energy is the second respondent in the review application, but the only one of seven respondents to file an answering affidavit and legally oppose the review.

Its 36-page affidavit was deposed to by Praveer Tripathi, the South African representative of the company. Tripathi made a number of contentious claims and allegations about the coalition.

The coalition took exception to these. In its replying affidavit, signed by Sven (Bobby) Peek, director of coalition member groundWork, allegations in Tripathi’s affidavit are described as “scandalous, vexatious and irrelevant”.

“Not only are these allegations baseless, but they are manifestly scurrilous, and their inclusion prejudices the applicants. The publication of these unfounded allegations may unreasonably cause injury to the applicants’ reputation and are prejudicial,” states Peek.

“It goes without saying that the applicants deny that any of these vexatious allegations are true or relevant to the matter. The applicants will seek a costs order on the scale of attorney and client at the hearing of this application.”

During the hearing of the main review application on 16 April in the Mbombela High Court, the coalition brought a separate application to strike-out the eight contested paragraphs. Some of the claims made by Tripathi in these paragraphs read:

“19.2. The applicants are a lobby group funded mainly from abroad, by the European Union and other environment organisations such as Greenpeace, Swedish Society for Conservation of Nature, and they have access to large amounts of funds, which they spend on securing the services of teams of lawyers and advocates, who are briefed to take any steps to frustrate the implementation of any mining project that the Green Lobby contends will be damaging to the environment, and their main tactic is to launch review after review application against every decision taken by any government official which opposes their position.

“The Court should be mindful of this tactic, and understand that this current application is part of this overall strategy and tactic and is not bona fide complaint to be considered on its merits…

“19.3. The Green Lobby operates out of Cape Town and/or Johannesburg, its members sit in air-conditioned offices, and have access to large amounts of resources, and the Lobby is run by educated and privileged personnel who lack for nothing. There is no connection between the Green Lobby and the local population in the mining areas, on whose behalf they purport to speak…

“19.4. “In essence, this entire dispute can be summarised as a dispute between rich whites and poor blacks, between left-wing politics and right-wing politics, and the disputes which occur when balancing interests, such as protecting the environment against economic growth and job creation…

“19.5. … In addition, the so-called articles attached to the affidavit [of the coalition] should be taken with a large pinch of salt, and if the Court wishes to consider same, it needs to do so with the following in mind:

44. 1 The authors of the articles all come out of the same stable as the Applicants, and their aim is to achieve the Green Lobby’s objective of no coal mining.

44. 2 The articles are opinion articles, written with a clear perspective opinion and do not contain the other side of the story, and do not constitute scientific evidence and have never been subject to peer review. The authors are paid by the Green Lobby, and are hardly independent minded …

“19.6. The Green Lobby sets up group after group purporting to represent different environmental issues, however these groups do not identify their members, and constitute nothing than a few individuals [sic] operating out of Cape Town or Johannesburg, and funded by European partners, to object to any issues relating to mining in South Africa.

“19.7. The grounds of review are not bona fide and PAJA [Promotion of Administrative Justice Act] is being abused.”

Uthaka opposed this subsidiary application.

Acting Judge Mosidi Moleleki did not make any ruling on the strike-out application and her judgment on the main review application was also reserved.

In his response to an invitation to comment, Uthaka Energy’s attorney Rael Zimerman said, “Neither GroundUp nor any of the [coalition] parties to the litigation have the support of the communities which they purport to represent, and they certainly don’t speak on their behalf.” [Zimerman appears to have mixed up GroundUp with groundWork. The two organisations are completely unrelated. GroundUp is solely a news agency and has no involvement in any of these court cases, while groundWork is one of the coalition members. – Editor]

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