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ENVIRONMENTAL RESOURCES MANAGEMENT KANGRA COAL (PTY) LTD.

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4 LEGAL AND POLICY FRAMEWORK

The authorisation process associated with the proposed Section 102

Amendment of the existing Consolidated Mining Right (Ref: MP

30/5/1/2/2/133MR) is being carried out in line with South Africa’s

environmental legislation to ensure that reasonable measures are taken to

warrant environmental protection and to promote sustainable development.

This Section constitutes a regulatory governance framework for the proposed

Project.

4.1 NATIONAL LEGISLATION

4.1.1 Constitution of the Republic of South Africa

The Constitution of the Republic of South Africa is the legal source for all law,

including environmental law, in South Africa. The Constitution enshrines the

basic, fundamental and inalienable rights of the citizens of the Republic.

4.1.2 The Mineral and Petroleum Resources Development Act

The Mineral and Petroleum Resources Development Act (MPRDA) (Act No.

28 of 2002) was enacted, together with its associated Regulations (published 23

April 2004), on 01 May 2004. The MPRDA provides that South Africa’s

mineral and petroleum resources belong to the nation and that the DMR is the

custodian thereof. The MPRDA allows the DMR to promote equitable access

to these resources, as well as give effect to Section 24 of the South African

Constitution by ensuring the nation’s mineral and petroleum resources are

developed in an efficient and ecologically sustainable manner.

By virtue of Section 37(1) of the MPRDA, the NEMA principles apply to the

mining sector and therefore the mining industry must adopt a risk-averse and

cautious approach; prevent negative impacts or effects of their activities on the

health and well-being of people and the environment; and pay for all their

pollution since they remain liable for the effects of their policies, projects,

programmes, products, processes, services or activities throughout their life

cycles.

In terms of Section 102 (as amended 21 April 2009) of the MPRDA, a mine

may not amend a Mining Right, a Mining Works Programme, environmental

management programme or an environmental authorisation issued in terms of

the National Environmental Management Act, 1998, without the written

consent of the Minister. The proposed MWE underground works, the

construction of the Adit 5, overland conveyor and servitude road and the new

Central Discard Dump would require an amendment of the Kangra Coal

Consolidated EMPr. In practice, the DMR expects the holder of a mining right

to conduct an EIA and submit an Environmental Impact Assessment Report


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(EIAR) and EMPr prior to the mentioned consent being granted for the EMPr

amendment.

Additionally, an updated Mine Works Programme (MWP) will be submitted

to the DMR together with the amended EMPr as well as a copy of the existing

and approved Social and Labour Plan (submitted in May 2014), as it covers the

same properties and communities and is thus still applicable.

Applicability to the Project

The proposed expansion into the Maquasa West Extension area, the construction of

the Adit 5, overland conveyor and servitude road and the new discard dump would

require an amendment to the EMPr and therefore an approval of the EMPr addendum

is required from the DMR before the development may commence. The current

application process comprises an application for an addendum to the 2014 EMPr

Consolidation and Amendment.

4.1.3 National Environmental Management Act

Section 2 of the NEMA provides for a comprehensive array of principles

which cumulatively aim to create among others, corporate socially responsible

behaviour by establishing legal liability for environmental damage, as well as

damage to human health and well-being.

Any decision taken in respect of the application for environmental

authorisation should take into account these principles which include the

Polluter Pays Principle, the Precautionary Principle, the Preventative Principle

and the Cradle-to-Grave Principle.

Apart from these principles, the NEMA also contains mechanisms, procedures

and structures to facilitate pollution prevention, minimisation and

remediation. A duty of care is contained in Section 28, which encompasses the

main liability provision which applies retrospectively (includes historical

pollution).

Section 24(1) of the NEMA requires that the potential consequences for, or

impacts on the environment must be considered, investigated, assessed and

reported on to the Competent Authority (CA). Where an environmental

impact assessment has been identified as the instrument to be utilised in

achieving the aforementioned, an application for environmental authorisation

needs to be obtained. The identified activities are listed under GN R983, R984

and R985 of the NEMA EIA Regulations.

The proposed MWE underground works, the construction of the Adit 5,

overland conveyor and servitude road and the new Central Discard Dump

trigger certain listed Activities under the EIA Regulations (December 2014).

The Activities triggered are listed in Table 4.1.


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Table 4.1 NEMA Listed Activities triggered by the proposed Project

Activity No. Listed Activity Description Triggered By

GN R983: Listing Notice 1

12 The development of –

(x) buildings exceeding 100 square

metres in size, and

(xii) infrastructure or structure with a

physical footprint of 100 square meters

or more;

where such development occurs –

(c) of no development setback exists,

within 32 metres of a watercourse,

measured from the edge of a

watercourse.

The proposed development footprints

of infrastructure within the Adit 5 is

as follows:

The development footprint of the

overland conveyor is 113 400 m2

Both the overland conveyor and Adit

5 are within 32 metres of several

watercourses (unnamed tributaries).

19 The infilling or depositing of any

material of more than 5 cubic metres

into, or the dredging, excavation,

removal or moving of soil, sand, shells,

pebbles or rock of more than 5 cubic

metres from – (i) a watercourse

The overland conveyor and its'

servitude road will cross

watercourses. It is expected that

construction will involve the infilling

and excavation/removal of soil, sand

or rock of more than 5m3 from these

watercourses.

21 Any activity including the operation of

that activity which requires a mining

permit in terms of section 27 of the

Mineral and Petroleum Resources

Development Act, 2002 (Act No. 28 of

2002), including associated

infrastructure, structures and earthworks

directly related to the extraction of a

mineral resource, including activities for

which an exemption has been issued in

terms of section 106 of the Mineral and

Petroleum Resources Development Act,

2002 (Act No. 28 of 2002).

Kangra coal is an existing coal mine

and is operating under the current

133MR.


(ii) a road with a reserve wider than 13.5

metres, or where no reserve exists where

the road is wider than 8 metres.

The servitude road for the overland

conveyor has a width of 10.2 m.

25 The development and related operation

of facilities or infrastructure for the

treatment of effluent, wastewater or

sewage with a daily throughput capacity

of more than 2000 cubic metres but less

than 15000 cubic metres.

Water treatment plant and sewage

treatment plant developed for the

treatment of less than 15,000m3 per

day.

27 The clearance of an area of 1 hectares or

more, but less than 20 hectares of

indigenous vegetation, except where

such clearance of indigenous vegetation

is required for – (i) the undertaking of a

linear activity.

The footprint of the entire adit is 21.44

Ha but the area that will require

clearing for adit infrastructure (e.g.

Control Room, Offices, Overburden,

Sub Station, Berm, Adit, Store Yard

and Water Treatment Plant) is 14.51

Ha (as above).

The overland conveyor and servitude

road are excluded from this Activity


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as these are linear activities.

30 Any process or activity identified in

terms of Section 53(1) of the National

Environmental Management:

Biodiversity Act, 2004 (Act No. 10 of

2004).

The area for the proposed

infrastructure falls within the Eastern

Highveld Grassland ecosystem which

is listed by SANBI as Vulnerable.


15 The clearance of an area of 20 hectares or

more of indigenous vegetation,

excluding where such clearance of

indigenous vegetation is required for –

(i) The undertaking of a linear

activity; or

(ii) Maintenance purposes

undertaken in accordance with

a maintenance management

plan.

The proposed discard dump will

require the clearance of an area

exceeding 20 hectares in extent.


4 The development of a road wider than 4

metres with a reserve less than 13.5

metres in

(a) Mpumalanga Province

(ii) outside urban areas, in:

(ee) critical biodiversity areas as

identified in systematic biodiversity

plans adopted by the CA or in

bioregional plans

The width of the overland conveyor is

2m and the servitude road has a

width of 10.2 m. There is no road

reserve.

The Mpumalanga Biodiversity

Conservation Plan (MBCP) has

identified this area as “Highly

Significant” which means that any

significant habitat loss may cause

these areas to become irreplaceable.

In addition, the area for the proposed

infrastructure falls within the Eastern

Highveld Grassland ecosystem which

is listed by SANBI as Vulnerable.

This ecosystem has been gazetted as a

listed ecosystem in terms of the

“National list of ecosystems that are

threatened and in need of protection”

(Government Gazette No. 34809 of 9th

December 2011).

12 The clearance of an area of 300 square

metres or more of indigenous

vegetation….

(c) in Mpumalanga

(ii) within critical biodiversity areas

identified in bioregional plans.

The construction of the adit will

involve the clearance of 145 100 m2, of

vegetation.

The overland conveyor and servitude

road will require the clearance of 113

400 m2 of vegetation.

The proposed area for the surface

infrastructure has been identified in

the Mpumalanga Biodiversity

Conservation Plan (MBCP) as “Highly

Significant” which means that any

significant habitat loss may cause

these areas to become irreplaceable.


(iii) bridges exceeding 10 square metres

in size;

Bridges will be constructed for the

overland conveyor and servitude road

at several points along the planned

route.


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(iv) dams, where the dam, including

infrastructure and water surface area

exceeds 10m2 in size;

(vi) Bulk storm water outlet structures

exceeding 10m2 in size;

(x) buildings exceeding 10 m2in size;

(xii) infrastructure or structures with a

physical footprint of 10 m2or more;

- where such development occurs –

(c) if no development setback has been

adopted, within 32 metres of a

watercourse, measured from the edge of

a watercourse;

(ii) outside urban areas, in: (ff) critical

biodiversity areas or ecosystem service

areas as identified in systematic

biodiversity plans adopted by the CA or

in bioregional plans

The construction of the adit (145 100

m2), overland conveyor and servitude

road (113 400 m2) is within 32m of an

unnamed tributary that falls within a

Listed Ecosystem in terms of the

“National list of ecosystems that are

threatened and in need of protection”

GN No. 34809 and an area identified

as “highly significant” in terms of the

MBCP.

Identification of the CA for the EIA under the EIA Regulations identifies the

DMR as the CA for those activities directly related to extraction of a mineral

resource.


The proposed MWE underground works, the construction of the Adit 5, overland

conveyor and servitude road and the new Central Discard Dump would trigger a

number of activities thus requiring that a full EIA process be undertaken.

4.1.4 National Water Act

One of the main and ever-continuing concerns in South Africa is the

sustainability of water management, and the costs associated with the

prevention and remediation of pollution in a country with an average rainfall

far below international standards. The National Water Act (NWA) is one of

the government’s answers to some of these challenges and functions as

sectoral legislation within the framework of NEMA.

Section 19 of the NWA mirrors the provision of Section 28 of NEMA and

addresses the prevention and remediation of the effects of pollution.

Section 21 of the NWA lists 11 consumptive and non-consumptive water uses.

Section 22 of the NWA provides that water may be used if it is permissible in

terms of Schedule 1 of the NWA, is an existing lawful water use defined under


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Section 32; is permissible under a General Authorisation Notice published in

terms of the Section 39, or if it is licensed in terms of Section 40 of the NWA.

The following water uses are triggered by the proposed development:

• Section 21(g) - Disposing of waste in a manner which may detrimentally

impact on a water resource;

• Section 21 (c): Impeding or diverting the flow of water in a water resource;

and

• Section 21 (i): Altering the bed, banks, course or characteristics of a

watercourse.


A water use licence is required for the above listed water uses triggered by the

proposed MWE underground works, the construction of the Adit 5, overland conveyor

and servitude road and the new discard dump.

An Integrated Water Use Licence Application (IWULA) and an accompanying

Integrated Water and Waste Management Plan (IWWMP) need to be submitted to

the DWS to apply for the WUL in respect of the proposed water uses. This process is

currently being undertaken by Golder and Associates.

Government Notice 704 (GN704)

Section 26 (1) of the NWA makes provision for the Minister of Water Affairs to

make regulations to control, monitor, modify or prohibit various practices

related to water use. GN 704 was promulgated by the Minister on 4 June 1999

in Government Gazette vol. 408, No. 20119 (GN704). The GN704 Regulations

were published in terms of Section 26 (1), (b), (g) and (i) of the NWA and

pertain specifically to water uses for mining and related activities.

Section 3 of the GN704 makes provision for exemption from the requirements

of the GN 704 schedules. This exemption will only be granted if the mine can

prove that they have implemented measures according to the best practice

guidelines and regulations that will ensure the protection of the water

resources at all times.


Exemption is required from Regulation 4 (a) of the GN704 due to the proposed discard

dump being located within 100m of a surface water resource. This application will be

made as part of the IWULA report to be submitted to the DWS.


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4.1.5 National Environmental Management: Waste Act

The National Environmental Management: Waste Act, 2008 (Act No. 59 of

2008) (NEMWA) fundamentally reformed the law regulating waste

management, and for the first time provides a coherent and integrated

legislative framework addressing all the steps in the waste management

hierarchy (waste avoidance, reduction, re-use, recycle, which is the overall

approach that informs waste recycling, recovery, treatment and safe-disposal

as a last resort). The NEMWA (Section 5 (2)) provides that the Act should be

interpreted and guided in accordance with the NEMA principles.

The objects of the NEMWA are to protect health, well-being and the

environment by providing reasonable measures for, inter alia, remediating

land where contamination presents, or may present, a significant risk of harm

to health or the environment.

The NEMWA provides for a licensing regime specific to waste management

activities. It replaces the historical system of permits issued in terms of the

repealed Section 20 of the Environment Conservation Act, 1989 (Act No. 73 of

1989) (ECA). Category A activities require a basic assessment process and

Category B activities require a Scoping and EIA process as prescribed in the

NEMA regulations.

On 2 June 2014 the amendment to the NEMWA was published (effective on

the date of publication), providing that residue stockpiles, which includes

discard dumps, were included under Schedule 3 of the NEMWA as hazardous

waste. This means that the proposed discard dump requires a Waste

Management Licence (WML) in terms of the NEMWA.

Following the above mentioned amendment, Government Notice Regulation

633 (GNR633) was published in Government Gazette No. 39020 on 25 July

2015, which amended the Waste Management Activities List (published in

Government Notice No. 921, of 29 November 2013 as amended by

Government Notice No. R. 332 of 2 May 2014). This amendment specifically

lists the establishment or reclamation of residue deposits and stockpiles as a

waste management activity, which requires a WML.


A WML is required for the following Category B activity now listed under the Waste

Management Activities List:

(11) The establishment or reclamation of a residue stockpile or residue deposit

resulting from activities which require a mining right, exploration right or production

right in terms of the Mineral and Petroleum Resources Development Act, 2002 (Act

No. 28 of 2002).

The CA for the NEMWA application is the DMR.


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The WML application will be undertaken separately to this process. It is, however,

noted by Kangra Coal that no disposal may occur onto the proposed discard dump

until all licenses have been obtained.

Government Notice Regulation No. 632, published in Government Notice

39020 on 24 July 2015 (GNR632) (“Regulations Regarding the Planning of

Residue Stockpiles and Residue Deposits from a Prospecting, Mining,

Exploration or Production Operation”) must be adhered to in respect of the

proposed discard dump.


The GNR632 provides that the planning, management and assessment of the residue

stockpile must be undertaken in accordance with the regulations set out therein. The

planning, i.e. design, waste characterisation, geotechnical study and groundwater

assessment was undertaken in accordance with the relevant regulations and DWS best

practices.

4.1.6 National Environmental Management: Air Quality Act

The National Environmental Management: Air Quality Act (Act No. 39 of

2004) (NEM:AQA) commenced on 11 September 2005, and was brought into

full force on 1 April 2010. The previous Atmospheric Pollution Prevention Act

(APPA) of 1965 was repealed on 1 April 2010.

Section 8 of the Act provides for the setting of national air quality standards,

monitoring and management of air quality and emissions.

Section 32 deals with dust control measures and provides for the Minister to

prescribe measures for the control of dust in specified places or areas, either in

general of by specified machinery or in specified instances the steps to be

taken to prevent nuisance or other measures aimed at the control of dust.

Section 34 provides for measures to control noise. These measures may be

promulgated through regulations. As none have been promulgated, it appears

that the noise control measures promulgated in terms of the Environment

Conservation Act, 1989 (Act No. 73 of 1989) (ECA) still apply.

Section 21 of the NEMAQA makes provision for the listing of activities which

result in atmospheric emissions, which must be licensed prior to

commencement in accordance with Section 22 of the NEMAQA.


No Atmospheric Emission Licence is required in terms of the NEMAQA.


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The storage and handling of ore and coal not situated on the premises of a mine or

works is listed in Subcategory 5.1 of Government Notice No. 248, published in GG

No. 33064 on 31 March 2010. The proposed discard dump and other activities falls

within a mining right area, therefore this listed activity is not triggered.

4.1.7 National Heritage Resources Act

The National Heritage Resources Act (NHRA) (Act No. 25 of 1999) aims to

introduce an integrated system for the management of South Africa’s heritage

resources. Further, the Act empowers civil society to nurture and conserve

their heritage resources so that they can be passed on to future generations.

The Act provides a framework for the management of heritage resources in

South Africa and to protect heritage resources of national significance. In

order to meet these objectives, the Act introduces an integrated system that

can allow for the identification, assessment and management of heritage

resources in South Africa.


There is the potential to impact on heritage resources and as such a Heritage Impact

Assessment has been undertaken in conformance with the South African Heritage

Resources Agency (SAHRA).

4.1.8 National Environmental Management: Biodiversity Act

The National Environmental Management: Biodiversity Act (NEM:BA) (Act

No. 10 of 2004) has as an objective to provide for the management and

conservation of biological diversity within the Republic and of the

components of such biological diversity. As such the focus of this legislation is

on the preservation of species and ecosystems irrespective of whether or not

they are situated in protected areas.

Chapter 4 of the NEM:BA is particularly relevant and provides for:

• The protection of threatened or protected ecosystems, with particular

emphasis on critically endangered, endangered, vulnerable and protected

ecosystems. – List of Threatened Ecosystems (Notice 1002 of Government

Gazette 34808 dated 9 December 2011).

• Listing of species that are threatened or in need of protection to ensure

their survival in the wild, while regulating the activities, including trade,

which may involve such listed threatened or protected species and

activities which may have a potential impact on their long-term survival. -

Threatened or Protected Species Regulations (Regulation 152 of 2007).

• The protection of our natural systems from invasive species.


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Chapter 5 of this Act specifically deals with Species and Organisms Posing Potential Threats to Biodiversity. To summarise, the purpose of Chapter 5 is to:

• Prevent the unauthorised introduction and spread of alien species and

invasive species to ecosystems and habitats where they do not naturally

occur;

• To manage and control alien species and invasive species to prevent or

minimise harm to the environment and to biodiversity in particular; and

• To eradicate alien species and invasive species from ecosystems and

habitats where they may harm such ecosystems or habitats.

Furthermore Section 73 (2) states that a person who is the owner of land on which a listed invasive species occurs must:

• Notify any relevant CA, in writing, of the listed invasive species occurring

on that land;

• Take steps to control and eradicate the listed invasive species and to

prevent it from spreading; and

• Take all the required steps to prevent or minimise negative impacts to

biodiversity.


The area for the proposed Adit 5 and overland conveyor falls within the Eastern

Highveld Grassland ecosystem which is listed by SANBI as Vulnerable. This

ecosystem has been gazetted as a listed ecosystem in terms of the “National list of

ecosystems that are threatened and in need of protection” (Government Gazette No.

34809 of 9th December 2011).

The impacts on this ecosystem will be assessed in the EIA.

4.1.9 Environmental Conservation Act

The Environment Conservation Act (ECA) (Act No. 73 of 1989) allows the

Minister of Environmental Affairs and Tourism (now the Ministry of Water

and Environmental Affairs) to make environmental regulations; including

regulations associated with noise.

Noise Control Regulations

In terms of Section 25 of the Environmental Conservation Act (ECA), the

national noise-control regulations (GN.R154 in Government Gazette No. 13717

dated 10 January 1992) were promulgated. The noise-control regulations were


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revised under Government Notice Number GNR.55 of 14 January 1994 to

make it obligatory for all authorities to apply the regulations.

Subsequently, in terms of Schedule 5 of the Constitution of South Africa of

1996, legislative responsibility for administering the noise control regulations

was devolved to provincial and local authorities. Provincial Noise Control

Regulations exist in the Free State, Western Cape and Gauteng provinces, but

the Mpumalanga province has not yet adopted provincial regulations in this

regard.

4.1.10 National Legislation associated with Land Reform and Security of Tenure

Based on the significance of land in both the national and personal arenas of

South Africa, the relevant legal structures or tools used to redress

discriminatory land legislation, ensure security of tenure, and to establish

communal access and title to land are presented in Table 4.2.


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Table 4.2 Legislation associated with Land Reform and Security of Tenure

Legislation Applicability to Project Applicability to this Project

Land Reform (Labour

Tenants) Act

(Act No. 3 of 1996)

• Enactment of this Act was intended to provide security of tenure for labour tenants1 and those

persons occupying or using land as a result of their association with labour tenants; and to

provide for the acquisition of land and rights to land by labour tenants;

• The Act recognised that the institution of labour tenancy in South Africa (still dominant in

1996) was the result of racially discriminatory laws and practices which led to the

undermining of human rights and denial of access to land;

• It intended to ensure adequate protection of labour tenants (as people disadvantaged by

unfair discrimination) in order to promote their full and equal enjoyment of human rights and

freedoms; and

• It established measures to assist labour tenants to obtain security of tenure and ownership of

land and thereby prevent further prejudice against them.

• This Act is not applicable in

this case.

Extension of Security

of Tenure Act

(Act No. 62 of 1997)

• This Act was intended to provide for measures with State assistance to facilitate long-term

security of land tenure (including purchase of land);

• It was intended to regulate the conditions of residence on certain land;

• The Act was to prevent unfair eviction, by farm owners, of labour tenants from their homes

and avoid the hardships and social conflict that could arise in such situations; and

• The Act promotes the achievement of long-term security of tenure for occupiers of land, where

possible through the joint efforts of occupiers, landowners and government bodies while

giving due recognition to rights, duties and interests of the landowner.

• This Act is not applicable in

this case.

Communal Property

Associations Act

(Act 28 of 1996)

This Act shapes landownership in the Study Area. The Act was developed to address the need for

communities to form Communal Property Associations (CPAs) in order to acquire, hold and

manage property. The Act also outlines that CPAs must be non-discriminatory, equitable,

democratic and accountable to members so that members are protected against abuse of power by

other members. Central to the Act, and working in harmony with the Land Reform and the

Extension of Security of Tenure Acts, described above, is the creation of a tool through which

communities could reinforce the security of their land tenure.

Once registered and approved, a CPA has the authority to sue and be sued, and acquire rights and

dispose of immovable property. They also become liable for immovable property, real rights by

mortgage, servitude or lease. By law, a CPA must continue despite changes in leadership, or exit of

members from the association. Any decision to dissolve the CPA, change the constitution, or to

CPA’s in the Project area have

been included in stakeholder

engagement activities and given

the opportunity to comment on

the proposed Project activities.

(1) 1 A 'labour tenant' is a person who is residing, or has a right to reside, on a farm, or has a right to use cropping or grazing land on a farm in return for labour, or is a child or grandchild of such a

person.


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Legislation Applicability to Project Applicability to this Project

dispose of or acquire property requires an “inclusive” decision making process and majority

agreement. It is illegal for any one person to grant or purport to grant community property rights

of a CPA.


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4.1.11 Legal Requirement Summary

The proposed Project will require the authorisations, licences and permits

listed in Table 4.3.

Table 4.3 Authorisations required for the Project

Statute Requirement Competent Authority

MPRDA An EIA be conducted and an EMPr

submitted

National Department of Minerals and

Resources

NEMA Then EIA and EMPr will be undertaken

according to the NEMA Regulations

(2014)

National Department of Minerals and

Resources

NEMWA WML to be applied for separately National Department of Minerals and

Resources

NWA IWULA – to be applied for separately.

Process is currently being undertaken.

National Department of Water and

Sanitation

4.2 NATIONAL STANDARDS

4.2.1 South African National Standards (SANS) as published by the South African

Bureau of Standards (SABS)

In terms of the Standards Act, 2008 (Act No.8 of 2008), the Council of the

South African Bureau of Standards (SABS) published the South African

National Standards (SANS). The SABS is responsible for maintaining South

Africa's database of more than 6,500 national standards, as well as developing

new standards and revising, amending or withdrawing existing standards as

required. The SABS commercial services can be divided into the following

clusters:

• Chemicals;

• Electro-technical;

• Food and Health;

• Mechanical and Materials;

• Mining and Minerals;

• Services; and

• Transportation.

Water Quality

Of applicability to this Project is the South African National Standard for

drinking water (SANS 241-1:2011), applicable to both the potable use of

surface and ground water.

Noise

SANS 10103:2008 (The Measurement and Rating of Environmental Noise with Respect to Annoyance and to Speech Communication) provides the maximum average background ambient sound levels, LReq,d and LReq,n, during the day and night respectively to which different types of developments may be


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exposed. Based on onsite measurements, the ambient sound levels on and around the proposed Project Site correspond to the rating levels for a rural area. As such, the acceptable Zone Sound Levels used include:

• Day (06:00 to 22:00) - LReq,d = 45 dBA.

• Night (22:00 to 06:00) - LReq,n = 35 dBA.

SANS 10103 also provides a guideline for estimating community response to

an increase in the general ambient sound level caused by an intruding noise. If

∆ is the increase in noise level, the following criteria are of relevance:

• ∆ ≤ 3 dBA: An increase of 3 dBA or less will not cause any response from a

community. It should be noted that for a person with average hearing

acuity, an increase of less than 3 dBA in the general ambient noise level

would not be noticeable.

• 3 < ∆ ≤ 5 dBA: An increase of between 3 dBA and 5 dBA will elicit ‘little’

community response with ‘sporadic complaints’. People will just be able to

notice a change in the sound character in the area.

• 5 < ∆ ≤ 15 dBA: An increase of between 5 dBA and 15 dBA will elicit a

‘medium’ community response with ‘widespread complaints’. In addition,

an increase of 10 dBA is subjectively perceived as a doubling in the

loudness of a noise. For an increase of more than 15 dBA the community

reaction will be ‘strong’ with ‘threats of community action’.

• SANS 10328:2008 – Methods for Environmental Noise Impact Assessments

4.2.2 National Environmental Management Act (Act No. 107 of 1998) Public

Participation Guideline (GN.R807 of 2012)

Summary of Guideline

In 2010, the Minister gazetted a new set of regulations on the requirements for

conducting EIAs in terms of Chapter 5 of NEMA. In order to assist potential

applicants, interested and affected parties and environmental assessment

practitioners to understand their role, the DEA has produced a series of

guidelines. These guidelines must be read in line with NEMA and the EIA

Regulations of 2010 as they do not substitute primary legislation.

The guideline updates and revises the draft integrated environmental

management guideline which was developed in 2005. The public

participation guideline provides for inter alia: the minimum legal

requirements for public participation processes (PPP); the steps of a PPP;

guidelines for planning a PPP; and a description of the roles and

responsibilities of the various role players.


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4.2.3 Water Quality Guidelines

Water quality guidelines for both surface and groundwater are applicable to

the Project, based on the following water users identified for the Project area:

• Aquatic ecology; and

• Stock watering.

The following guidelines published by DWAF are applicable:

• DWAF, 1996. South African Water Quality Guidelines. Volume 7: Aquatic

Ecosystems; and

• DWAF, 1996. South African Water Quality Guidelines. Volume 5: Livestock

Watering.

Derivation of Surface and Groundwater Screening levels using the Water Quality

Standards and Guidelines

Using baseline surface water and groundwater quality results, the South

African Water Quality Standards for Drinking Water (i.e. SANS241:2011), and

the South African Water Quality Guidelines for both Aquatic Ecosystems and

Livestock Watering, site specific surface water screening levels were derived.

Surface Water Criteria

The following rationale was followed to develop the surface water standards:

The most conservative of the aquatic ecology/drinking water/livestock

watering guidelines was adopted as the screening level, except in the instance

where the average baseline surface water quality exceeded the screening level.

Where the baseline surface water quality exceeded the screening level, the

screening level was set to a value two standard deviations higher than the

mean for that parameter in baseline surface water.

In the case of the major cations and anions, the most conservative screening

level was for drinking water. However, due to the extremely low Total

Dissolved Solids (TDS) of the baseline surface water, if the drinking water

screening levels are adopted, this will result in the TDS exceeding the aquatic

ecology screening levels of less than a 15% change in baseline conditions. In

order to account for this, screening levels for major cations and anions were

calculated assuming stoichiometric dissolution of CaSO4 or NaCl to the point

at which the TDS was 15% above the baseline value.

4.3 NATIONAL PLANS AND POLICIES

Table 4.4 highlights a selection of national plans and policies which are

deemed most applicable to the proposed Project.


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Table 4.4 National Development Policy Context

Plan/Policy Key Aspects/Objectives

National

Development Plan

2030 (2012) (NDP)

• The NDP, adopted by the ANC National Conference in Mangaung (2012) “envisages an economy that serves the needs of all South Africans – rich and poor, black and white, skilled and unskilled, those with capital and those without, urban and rural, women and men.”

• The Vision is that, in 2030, the economy should be close to full employment; people will be equipped with the skills they need; ownership of production will be less concentrated and more diverse (where black people and women own a significant share of productive assets); and the economy will be able to grow rapidly, providing the resources to pay for investment in human and physical capital.

• Subsequently, the NDP proposes to create 11 million jobs by 2030 by:

- Realising an environment for sustainable employment and inclusive economic growth.

- Promoting employment in labour-absorbing industries. - Raising exports and competitiveness. - Strengthening government’s capacity to give leadership to

economic development. - Mobilising all sectors of society around a national vision.

New Growth Path (2009)(likely to be superseded by the NDP 2030 but still in place)

• Presents growth objectives nationally and per province.

• Mpumalanga Province (and Gert Sibande District Municipality) having to proportionally contribute towards the achievement of increased employment in, amongst others “Jobs Drivers” in the main economic sectors:

- 300 000 in Agriculture smallholder schemes - 145 000 jobs in agro processing by 2030 - 140 000 additional jobs in Mining by 2020, - 200 000 jobs by 2030, not counting the downstream and

side stream effects. - 350 000 jobs as per the Industrial Policy Action Plan 2

targets in manufacturing by 2020. - 250 000 jobs in Business and Tourism by 2020

Government Outcomes (adopted in 2010)

• One of the 12 Outcomes of public service delivery priorities highlighted in the New Growth Path and relevant to this Project is Outcome 7: Vibrant, Equitable And Sustainable Rural Communities And Food Security, to be achieved through:

- Sustainable agrarian reform and improved access to markets for small farmers.

- Improved access to affordable and diverse food. - Improved rural services and access to information to

support livelihoods. - Improved rural employment opportunities. - Enable institutional environment for sustainable and

inclusive growth. Medium Term Strategic Framework (MTSF) (2009)

• Seeks to identify the major strategic choices needed to deal with poverty and underdevelopment. Key objectives include:

- Reduction of poverty and underemployment. - Provision of skills required by the economy. - Ensuring that South Africans can fully exercise their

constitutional rights and enjoy the full dignity of freedom. - Achievement of a better national health profile and

reduction in preventable deaths. - Reduce serious and priority crimes. - Position SA strategically as an effective force in global


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Plan/Policy Key Aspects/Objectives

relations.

National Spatial Development Perspective (NSDP) (initiated in 1999)

• Argues that government’s social objectives will be best achieved through infrastructure investment in economically sustainable areas with proven development potential. Therefore, areas displaying little or no potential for growth should only be provided with the constitutionally mandated minimum levels of services, and the focus of government spending should rather be on the people, i.e. social development spending. Government spending on fixed investment, beyond the constitutional obligation to provide basic services to all citizens (such as water, electricity as well as health and educational facilities), would therefore be focused on localities of economic growth and/or economic potential in order to attract private-sector investment, stimulate sustainable economic activities and/or create long-term employment opportunities (1).

• Aims to not only provide a strategic assessment of the spatial distribution and socio-economic characteristics of the South African population, but to gain a shared understanding of the distribution of economic activities and potential across the South African landscape – based on this the NSDP sets out a number of guidelines for infrastructure development in South Africa.

The International Council on Mining and Metals (ICMM)

Although not policy or legislative, the International Council on Mining and Metals (ICMM) have published a set of guidelines on good practice guidance on mining and biodiversity (Johnson and Starke, 2006)

The Mining and Biodiversity Forum of South Africa, 2009 (Pre-publication Guidelines for South Africa)

The South African Mining and Biodiversity Forum (SAMBF) was established in 2005 to provide a platform for cross-sectoral interaction and co-operation in order to improve biodiversity conservation and management in the mining sector. A review of the status of biodiversity management in the mining industry in South Africa was published (Kuntonen-van’t Riet, 2007) and a need for the establishment of biodiversity guidelines was identified. The good practice guidance on mining and biodiversity, published by the ICMM was prepared for an international audience, and was therefore generic in nature. A pre-publication document in the South African context was released in 2012 called Mainstreaming Biodiversity Into Mining: A Guideline For Practitioners And Decision Makers In The Mining Sector. This guideline document was compiled to incorporate local biodiversity information and best practice guidelines, specific to South Africa. The Guideline aims specifically to integrate “relevant biodiversity information into decision making about mining options and how best to avoid, minimise or remedy biodiversity impacts caused by mining, and in so doing support ecologically, economically and socially sustainable development”.

4.4 REGIONAL LEGISLATION

4.4.1 Mpumalanga Parks Board Act (Act No. 6 of 1995)

The objectives of this Act are as follows:

• to provide effective conservation management of natural resources of the

Mpumalanga Province;

(1) It’s worth noting that the Local Municipalities of Mkhondo and Pixley KaIsaka Seme are defined within the NSDP

classification as areas of Combined Poverty and Economic Activity with high levels of poverty concentration situating them

within the environment identified for sustainable economic development while being in need of significant social

development spending.


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• to promote the creation of economic and employment opportunities in

pursuit of nature conservation and biodiversity;

• to ensure that natural systems, biodiversity and ecological functions and

processes in the Mpumalanga Province are maintained;

• to determine and enforce limits to sustainable utilization of natural

resources;

• to contribute to the advancement of scientific knowledge, and facilitate

Technology transfer in respect of conservation; and

• to provide information and extension services to the public on

conservation management, problem species, legal aspects of conservation

and other conservation matters.

4.4.2 Mpumalanga Tourism and Parks Agency Act (Act No. 5 of 2005)

This Act provides for the establishment of the Mpumalanga Tourism and

Parks Agency (MTPA) and for the management thereof by a Board; to provide

for the sustainable development and improvement of the tourism industry in

Mpumalanga; to provide for conservation management of the natural

resources of Mpumalanga; to confer powers and functions upon the Agency;

to provide for the registration of certain persons and entities directly involved

in tourism; to provide for transitional arrangements; and to provide for

matters incidental thereto.

4.4.3 Mpumalanga Conservation Act, 1998 (Act No. 10 of 1998)

To consolidate and amend the laws relating to nature conservation within the

Province and to provide for matters connected therewith.

4.4.4 Regional Plans and Policies

Table 4.5 highlights a selection of provincial plans and policies seen to be most

pertinent to the proposed Project.

Table 4.5 Regional Development Policy Context

Policy Key Aspects/Objectives

Mpumalanga Economic Growth and Development Path (MEGDP) (2011)

The primary objective of the MEGDP is to foster economic growth that creates jobs, and reduce poverty and inequality in the Province. Main economic sectors (all of which occur in the Gert Sibande District) identified as key to spur economic growth and employment creation and of relevance to this Project include:

• Agriculture and forestry through:

- Skills development;


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- Support for small-scale farmers and agri-business; - Fast-tracking the settlement of outstanding land claims; - Optimal utilization of restituted and distributed land; - Increased acquisition of agricultural land for the

previously disadvantaged; and - Revisiting of current legislation to create balanced

development in areas of competition between mining and farming.

• Mining and energy through:

- Upgrading and maintenance of coal haulage network; - Increased levels of higher skilled graduates; - Expanding the water network and increase reliance on

water transfer schemes; - Increase South Africa’s load and improve alternate energy

supply; - Establishment of a mining supplier park to enhance

enterprise development in the province; - Resolve land claims to release land for development.

Comprehensive support to small-scale mining enterprises to exploit opportunities presented by corporate social; and

- Investment initiatives, retreatment of sub-economic deposits and dumps, and dimension stones.

• Tourism and cultural industries through:

- Broadening and diversifying the primarily nature-based tourism product offerings of Mpumalanga into other segments of the market and subsequently grow the economy that create jobs through:

� Sustained investment in all aspects of the industry – new products, destination marketing, human capital development in the service industry;

� Investing in economic infrastructure, e.g. airport, International Conference Centre, sports Academy, roads for tourism routes, etc.

� Comprehensive support to SMMEs to exploit opportunities in the tourism and cultural industries.

Mpumalanga Biodiversity Conservation Plan

The biodiversity of Mpumalanga has been recorded and catalogued by the Mpumalanga Parks and Tourism Authority (MPTA) for more than 10 years in what is referred to as the Provincial Biobase Project. This data has been combined and analysed to produce a spatial plan for biodiversity conservation and designed to serve as an environmental decision support tool. Information for the MBCP has been sourced from a draft of the Land-use Guidelines for Biodiversity Conservation Categories in Mpumalanga (Ferrar and Lötter, 2007). The spatial plan groups the province’s biodiversity assets into six conservation categories:

1. Protected Areas (PA) - currently under formal biodiversity

protection. 2. Irreplaceable areas - in urgent need of PA status. 3. Highly Significant areas - requiring strict land-use controls. 4. Important and Necessary areas - requiring special care. 5. Least Concern - providing sites for development. 6. No Natural Habitat remaining - providing preferred sites for all

forms of development

These areas have been mapped for the Project area, both in terms of the area’s sensitivity rating and impact assessment.

Mpumalanga Tourism and Parks

To promote national uniform standards in Environmental Management Plans (EMP’s) the Mpumalanga Tourism and Parks Agency (MTPA)


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Agency Guidelines for Biodiversity Assessment

have set minimum standards that need to be conformed to in terms of Biodiversity Assessments for development applications. These guidelines cover flora, fauna, aquatic and wetland systems.

4.5 INSTITUTIONAL AND ADMINISTRATIVE FRAMEWORK

4.5.1 National, Regional and Local Authorities

This section briefly presents aspects of South Africa’s institutional structures

that are relevant to the proposed Project. The levels of government outlined

will have varying jurisdiction over the Project. Therefore an understanding

and interaction between the parties will be necessary throughout the Project’s

lifecycle.

South Africa is a constitutional democracy that is made up of three

government structures: national, provincial and local government, each

obtaining powers from the Constitution. It is a sovereign, democratic state and

is divided into nine provinces that each have provincial legislature. The

provincial government, and in the case of this proposed Project, the

Mpumalanga Provincial Government, is responsible for providing a strategic

vision and framework for the province, as well as ensuring cooperation

between municipalities and ensuring each municipality performs their

respective functions. The district and local municipalities are each responsible

for the provision of services and infrastructure within their municipal

boundaries. This is facilitated through the development and implementation

of Integrated Development Plans (IDPs), Spatial Development Frameworks

(SDF) and Local Economic Development (LED) Plans, amongst others.

The proposed Project is located within the Mkhondo and Pixley Ka Seme

Local Municipalities which fall within the greater Gert Sibande District. These

two Local Municipalities are further divided into Wards. Of relevance to the

proposed Project are Wards 2 and 3 of the Mkhondo Local Municipality

(MLM) and Wards 5 and 10 of the Pixley Ka Seme Local Municipality

(PKSLM) (Figure 4.1).


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Figure 4.1 Contextual Map: Province, District and Municipality


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At the national level, there are a number of Departments within whose

domain the Project would fall including:

The Department of Mineral Resources – to enable a globally competitive,

sustainable and meaningfully transformed minerals and mining sector to

ensure that all South Africans derive sustainable benefit from the country’s

mineral wealth.

The Department of Agriculture, Rural Development, Land and

Environmental Affairs - to ensure the protection of the environment and

conservation of natural resources, balanced with sustainable development and

the equitable distribution of the benefits derived from natural resources.

The Department of Water and Sanitation - to ensure that all South Africans

gain access to clean water and safe sanitation, the water sector also promotes

effective and efficient water resources management to ensure sustainable

economic and social development.

The Department of Energy - to ensure secure and sustainable provision of

energy for socio-economic development.

The Department of Agriculture, Forestry and Fisheries – to ensure a a united

and prosperous agricultural sector, with the aim of supporting sustainable

agricultural development.

The Department of Rural Development and Land Reform – to develop a

Comprehensive Rural Development Programme (CRDP) throughout the

country.

The Department of Land Affairs - provide an equitable and sustainable land

dispensation that promotes social and economic development.

Specific impacts relating to the Project would be monitored and managed at

the Provincial level in relevant departments and through local government,

which includes district and local municipalities, and wards.

4.5.2 Traditional Authorities

The continuing significance of the role of traditional leadership within South

African society is currently under discussion. This has been particularly so

since the scrapping of Apartheid-era legislation, the Black Authorities Act

(1951), which employed divide and rule tactics to undermine traditional

power structures. Many laws enacted to replace this Act however continue to

perpetuate some of the instituted “traditions”, marginalising women and rural

communities where about one third of South Africa’s population still lives.

Against this backdrop it is worth noting that the chieftaincy structure still

operates in the proposed Project Area, albeit not strongly. Of relevance to the

Project are Chiefs Yende, Mthetwa and Tshabalala.


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In Mpumalanga traditional leaders’ responsibilities specifically include:

• Referring all Chieftainship disputes to the Commission on Traditional

Leadership Disputes and Claims; and

• Handling all conflict and disputes between Traditional Leaders and the

Community.

4.6 INTERNATIONAL GUIDELINES, STANDARDS AND ACCORDS

Table 4.6 highlights a selection of international guidelines, standards and

accords seen to be most pertinent to the proposed Project.

Table 4.6 International Guidelines, Standards and Accords

Plan/Policy Key Aspects/Objectives Relevance to the Project

Convention on

Biological

Diversity (Rio de

Janeiro, 1992)

The Convention is the first global, comprehensive agreement to address all aspects of biological diversity (genetic resources, species, and ecosystems). It recognizes - for the first time - that the conservation of biological diversity is "a common concern of humankind" and an integral part of the development process. South Africa signed in 1998, showing further commitment to the conservation of biodiversity. Further to this and discussed in more detail below, South Africa's policy and legislative framework for biodiversity is now well developed, providing a strong basis for the conservation and sustainable use of biodiversity.

Because South Africa is a signatory to the convention, aspects of this convention pertaining to the conservation of biological diversity should be taken into consideration by the authorities when making a decision on the proposed Project.

The Convention

on International

Trade in

Endangered

Species of Wild

Fauna and Flora

(CITES)

CITES is an international agreement between governments. Its aim is to ensure that international trade in specimens of wild animals and plants does not threaten their survival. South Africa became signatory to the convention on 15 July 1975.

Because South Africa is a signatory to the convention, aspects of this convention should be taken into consideration by the authorities when making a decision on the proposed Project.

The IUCN

(World

Conservation

Union)

The Union’s mission is to influence, encourage and assist societies throughout the world to conserve the integrity and diversity of nature and to ensure that any use of natural resources is equitable and ecologically sustainable.

The CA should take this into account.

The United

Nations : Agenda

21, Rio +5 and the

Johannesburg -

World Summit

on Sustainable

Development,

2002

A summit focused on the evaluation of sustainable development programmes and policies and the success achieved towards their realization. The Summit which was hosted in Johannesburg adopted the Johannesburg Plan of Implementation and the Johannesburg Declaration and focussed on the evaluation of sustainable development programmes and policies and the success achieved towards their realization.

The sustainable development programmes and policies evaluated in this summit should be considered by the CA when making a decision on the proposed Project.

Johannesburg Chapter four of the JPOI deals with As above.


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Plan/Policy Key Aspects/Objectives Relevance to the Project

Plan of

Implementation

(JPOI), Chapter 4,

2002

protecting and managing the natural resource base of economic and social development (water; oceans; vulnerability; disaster management; climate change; agriculture; desertification; biodiversity; mountains; tourism; forests; mining). A general target, to achieve by 2010, is a significant reduction of the current rate of biodiversity loss at the global, regional and national levels as a contribution to poverty alleviation and to the benefit of all life on earth.

New Partnership

for Africa’s

Development

(NEPAD), 2003

This initiative encourages sustainable development and associated conservation and wise use of biodiversity in Africa. It has been recognised that a healthy and productive environment is a prerequisite for the success of NEPAD, together with the need to systematically address and sustain ecosystems, biodiversity and wildlife. Six areas have been identified:

• Combating land degradation, drought and desertification;

• Conserving Africa’s wetlands;

• Preventing and controlling invasive alien species;

• Conservation and sustainable use of coastal and marine resources;

• Combating climate change in Africa; and

• Cross-border conservation and management of natural resources

This initiative should be considered by the CA when making a decision on the proposed Project.

The Tripartite Interim Agreement between the Republic of Mozambique, Republic of South African and the Kingdom of Swaziland for Co-operation on the Protection and Sustainable Utilisation of the Incomati and Maputo Watercourses.

The general protocols of this agreement are associated with sustainable, equitable and reasonable utilisation of shared water resources. Furthermore, it is to prevent, reduce and control pollution of surface and ground waters, and protect and enhance the quality status of the waters and associated ecosystems for the benefit of present and future generations. The Protocol aims to promote a partnership between the three countries and to prevent, eliminate, mitigate and control Transboundary impacts. The scope of this agreement is to provide a dynamic process for the short, medium and long-term management of water quality, to implement an exchange of and access to the necessary information and data and to compile a framework for capacity building between the three neighbouring countries.

This agreement should be considered by the CA when making a decision on the proposed Project.

4.7 PROPONENTS CORPORATE POLICIES AND PROCEDURES

In addition to national, provincial and local legislation, policies and

guidelines, Kangra Coal also has internal policies and procedures to which it

needs to comply. Procedures detailing the steps to manage identified aspects


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are in place to ensure commitments made in the various Kangra Coal policies,

are met.

Pertinent environmental and social policies applicable to current Kangra Coal

activities are described below.

4.7.1 Environmental Policy

Kangra Coal is committed to responsible environmental stewardship and

sustainable business practices; Kangra Coal pledges to improve their overall

environmental performance across all their business activities. Kangra Coal

encourages their business partners and members of the entire Kangra group to

participate in this endeavour.

In accordance with this Environmental Policy (KAN-AS-GEN-E-POL-ENV-

043 Revision 02 from April 2015), Kangra Coal strives for compliance with all

environmental laws and commits to manage all of its activities in the

environment.

Kangra Coal’s signed Environmental Policy is included in Annex 4A.

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