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Tuesday Feb 05, 2013

Mtunzini residents to continue fight against mining

Mtunzini residents who lost their court case to stop a large mining company from digging up heavy minerals on the doorstep of the town and local nature reserve have decided to fight on in their "David and Goliath" legal battle - despite being saddled with a hefty legal bill by the high court.

The Mtunzini Conservancy, which went to court late last year to stop Tronox KZN Sands from mining next to the Zululand coastal resort town and Umlalazi Nature Reserve, confirmed yesterday it had applied for leave to appeal against the judgment and costs order made by Durban High Court Judge Rashid Vahed on January 8.

As a result of losing the case, the conservancy is facing a massive legal bill which is expected to run into hundreds of thousands of rand.

In its application for leave to appeal, the conservancy argues that Judge Vahed "misdirected himself in disregarding the constitutional importance of the issues in this case" and that he was also "unduly critical" of the conservancy's actions in bringing an urgent application before the court.

The latest developments in the Mtunzini Conservancy legal challenge are expected to be followed with great interest by environmental groups and developers alike, especially as it does involve the financial ability of environmental interest groups to challenge multinational groups.

In the landmark "Biowatch case" in 2009, the Constitutional Court noted that litigation by environmental and public interest groups could be jeopardised severely if these groups were saddled with ruinous financial costs while litigating in the public interest.

In that case, the Constitutional Court said the protection of environmental rights depended not just on the diligence of public officials but also on "a lively civil society willing to litigate in the public interest".

Commenting on the Mtunzini Conservancy's legal appeal yesterday, Centre for Environmental Rights director Melissa Fourie said the case had several ramifications for environmental justice groups and it was important to challenge Judge Vahed's cost ruling.

Fourie, who was formerly head of the government's Green Scorpions environmental inspectorate, noted that section 32 of the National Environmental Management Act provided legal protection to any person or group acting in the public interest or in the interests of the environment - even if they ended up losing the court case.

In his ruling, Judge Vahed said he had taken the Biowatch ruling into account as well as the fact that the Mtunzini Conservancy "purports to act in the interests of the public and the environment".

However, granting an interdict against mining was "potentially devastating" to Tronox, and the conservancy had "rushed to court" without engaging properly with the mining company's attorneys.

The Mercury

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