Update: August 2018 to April 2019 – Status of the Save Our Wilderness campaign

The wise Greek philosopher observed more than 2500 years ago that change is the only thing that is certain. 

Heraclitus

4 April 2019; original blog by Rob Symons published at Save Our Wilderness

Protesting workers close Tendele mine

On 24 August 2018, placard-waving workers from Tendele Coal Mine in Somkhele, stood outside the Pietermaritzburg High Court protesting against our (Save Our Wilderness organization) application to close the mine for being non-compliant.

On 1 April 2019, eight months later, these same protesters closed the mine themselves! 

Who would have thought this possible? Some people considered the reported closure an April Fool’s hoax. Undoubtedly, the mine would have been happy if this had been so, but it is fact not fiction.

The workers closed the mine because of grievances relating to underpayments in their salaries – in some instances, as much as R10,000 a month. Significant differences in salaries being paid to people doing the same job have also created dissatisfaction. These arise from Tendele’s non-compliance with union rates. Negotiations with the CCMA are ongoing to try and resolve the situation.

How ironic that the workers achieved what our High Court application failed abysmally to do. Not only did we lose our case but Judge Seegobin ordered us to pay the mine’s legal costs.

Our High Court case was challenging Tendele for its non-compliance but, in our case, it related mainly to no Environmental Impact Assessment and no waste management licence. These should surely be mandatory, particularly for such a polluting activity right next to the historic Hluhluwe iMfolozi Park, established over 100 years ago as a sanctuary for the last remaining White Rhino on the African continent. The honourable Judge thought otherwise.

Tendele’s History of Non-Compliance

While Heraclitus is right that change is inevitable, Supertramp, a superb English rock band from the 70s wrote a song called “Some Things Never Change”. This would provide a good title for the long litany of non-compliance associated with Tendele since it started its operations in 2007.

For seven years, the mine operated without a valid water use licence. The mine also exhumed and relocated hundreds of graves without necessary permits and reneged on its agreed compensation to families for the exhumation of the remains of their ancestors – a very serious matter in Zulu culture. The mine has taken the property of hundreds of people without compensating them for their land, only for their homes, arguing that they live on tribal land that belongs to the Ingonyama Trust Board. It turns out the mine is wrong, and that people in tribal areas are entitled to be paid out for their land or relocated to a place that is similar to the land they have had to vacate.

In August 2018, the South African Human Rights Commission released its report on mining affected communities, a document that includes numerous human rights abuses perpetrated by Tendele.

Earlier in 2018, ActionAid conducted an audit of Tendele’s Social Labour Plan and discovered glaring discrepancies between what the mine had committed itself to do and what it has actually done. This is likely to result in court action against Tendele. Compensation claims are also in the process of being compiled against the mine. And so, the list of non-compliance goes on….

So who benefits from Tendele? 

Clearly the workers are not benefitting as they should, hence the closure of the mine on 1 April 2019.

Somkhele residents are definitely not benefitting, particularly those directly affected by the negative impacts of Tendele mine. The general complaint is that the majority of residents are much worse off now than before Tendele started mining in 2007. This complaint is valid and runs counter to the falsely held belief and narrative that mines uplift and develop communities. This is not true.

So, who are the beneficiaries of Tendele’s millions? There are the usual well-paid CEO and top mine managers, and the shareholders when stock markets are strong, but it appears the main beneficiary is an unidentified entity, referred to in Tendele’s Mining Works Programme as “Royalties-Tribe”. From July 2018 to June 2019, it is tabled that the “Tribe” would be paid over R9-million; the government R3.5 million; and Mine Health and Safety Regulations just over R8-million. For the same period, it was anticipated R35,281 would be paid in rates and taxes. Go figure this out.

Where are we now? 

GET/MCEJO Court action

Judge Seegobin’s punitive judgement made in the Pietermaritzburg High Court case against GET, Sabelo Dladla and the Mfolozi Community Environmental Justice Organisation (MCEJO) is on appeal. We are waiting for a date, probably in August, for our appeal to be heard. We are confident we will win, which opens the way for us to take our case to the Supreme Court in Bloemfontein, which we also anticipate winning.

A recent article in the Business Day confirms strong support from the highly respected Centre for Environmental Rights (CER) for our case. They see our application as setting an important precedent for the mining sector to comply with environmental requirements set out in the National Environmental Management Act (NEMA). Currently many mines in South Africa are operating without the necessary authorisations. 

Regarding the costs order, CER’s program head for mining, Catherine Horsfield, expressed grave concern that if this judgement is allowed to stand, it could have “a chilling effect” on civil society’s important watchdog role of bringing legal challenges that are in the public interest to the courts thereby defending our constitutional rights and protecting the environment. 

MCEJO Court Action 

At the same time, MCEJO is calling for a review of the dismissal of its appeal by Minister Gwede Mantashe, who approved the 222 km² mining right granted to Tendele mine in 2016 for 30 years. This matter will be heard in the Pretoria High Court. The date is still to be set.

The mining right incorporates the area north of Tendele’s current mining operations for the full length of HiP, as far north as Centenary gate. The initial application was for 34 km² and the specialist studies also cover this area, which amounts to less than 5% of the total area. The Minister deemed this and the consultation process adequate. Meanwhile none of the affected communities nor Interested and Affected Parties (IAPs) like MCEJO, GET, MACUA, WAMUA, Womin, groundWork, the Wilderness Leadership School, the Wilderness Action Group, WESSA, Wildlands or local tourism operators were informed about this application until GET’s attorney, Kirsten Youens, discovered the mining licence and brought it to everyone’s attention.

Fuleni and Ibutho Coal and Imvukuzane Resources 

On 1 May 2014, GET initiated the Save Our iMfolozi Wilderness (SOW) campaign to support the Fuleni community in its opposition to the proposed Ibutho Coal mine. Fuleni is a tribal reserve on the south-eastern boundary of the iMfolozi Wilderness Area, across the Mfolozi river from Somkhele. This area is held sacred by the Zulu people because it was where King Shaka grew up as a boy and incorporates the hunting grounds reserved for the Zulu Kings. 

After an intense three-year battle, Ibutho Coal seemed to disappear off the scene. Then, in June 2018, Imvukuzane Resources sent out notice that they had applied to prospect the Fuleni Reserve. This was met with a strong response from the IAPs and the Fuleni residents who are steadfast in their resolve not to allow mining on their land.  Nothing further has happened and after several months we discovered that Ibutho Coal is challenging the Department of Mineral Resources for rejecting their application on grounds that they cannot adequately mitigate the impacts their mine would have on the iMfolozi Wilderness area.

Effectively this means Imvukuzane’s application will have to wait until this matter has been resolved. One wonders how the Imvukuzane mine will be able to mitigate its impacts, which are likely to be similar.

Meanwhile a couple of interesting development projects are being initiated by Fuleni residents demonstrating that the people are taking control of their own future. There is a well-managed community goat breeding project that ensures the carrying capacity of allocated land is constantly monitored and not overstepped  Linked to this is fincluding a goat meat processing plant being established by a group of enterprising young women from the area.

So positive change is definitely taking place….proving Heraclitus correct. There is nothing permanent except change.

Call to Action:

Do you care about the Hluhluwe-iMfolozi Wilderness and do you want to make a difference?

Good news: YOU can!

You can donate funds here, if you like.

But wait: we have another way of being that difference. For instance, you can also organize a fun evening and ask your friends and family to donate to your crowdfunding evening; check for more info here.

Multi-Award Winning Documentary Highlights the Mining Threat to iMfolozi: Sisters of the Wilderness

THIS SOCIAL IMPACT DOCUMENTARY ‘SISTERS OF THE WILDERNESS’ WON BEST SOUTH AFRICAN FEATURE DOCUMENTARY AT THE DURBAN INTERNATIONAL FILM FESTIVAL AND QUALIFIES FOR THE OSCARS.

The film is mostly set in the iMfolozi wilderness area, within the oldest proclaimed game reserve in Africa and one of the fast disappearing pockets of wilderness where wild nature can be experienced at its purest form.

Since time immemorial this sanctuary has maintained its raw wildness. Here an ageless spirit survives and one can sense a spiritual connection to the land. The iMfolozi valley was the heartland of the Zulu people who lived here in harmony with nature and with great respect (inhlonipho) to Mother Earth and all creation.

This wilderness acts as the main character in the film. Into this wilderness a group of young Zulu women enters on a life-changing journey to experience true wild nature for the first time in their lives.

The young women, mostly from townships and semi-rural communities, aspire to elevate themselves beyond challenging life conditions. They have an interest in nature and a spark of leadership but they lack the opportunity to experience wild nature in their impoverished lives. Accompanied by veteran female wilderness guides, they camp under the stars in big game country, totally surrounded by wild animals such as elephants, rhinos and lions. Exposed to the elements and carrying on their back all they need for the journey, they have to cope with emotional and physical challenges, and learn what it takes to survive in the wild.

A wilderness journey is an intense experience where one can expect to undergo personal transformation. It can enhance personal growth and leadership development; and it is also a soulful experience that has the capacity to heal. The solitary night watch where one is responsible for the entire camp, the solitude contemplation sessions and the possible close encounters with wild animals like a charging rhino, an elephant ambling next to the camp at night, the yellow eyes of a wild cat in the dark of the night, all contribute to enhance one’s sense of connection to nature and encourage self-introspection.

The latter especially occurs whilst one sits around the campfire, listening to the lively Zululand wilderness night, hearing the cough of the leopard, the cry of the hyena or the roar of the lion.

Mentoring the women and initiating them into the wilderness is, KwaMashu born, Lihle Mbokazi, the first black South African woman wilderness guide. Lihle is also deeply interested in reviving indigenous knowledge systems and share the wisdom of the old days with the young women. Along with Lihle we also see Janet and Zondi, the lead wilderness guides, who share nature wisdom with the women.

Long periods of Nature’s ambient sounds help the audience to connect with wilderness and when interweaved with the soulful music of film composer, Ian Arber, transports one into the same inner world of connectivity that nature takes one on.

Link to SistersOfTheWilderness.com for a short trailer.

Despite the tranquil setting, the iMfolozi wilderness is now severely threatened.

An existing open-cast coal mine on the Eastern border of the wilderness is expanding regardless of its devastating impact on the surrounding rural communities and their livestock.

Additionally, a proposed coal mine just 40 metres from the park’s southern boundary threatens to devastate even further this fragile nature gem and the communities.

The park is home to incredibly important populations of both white and black rhino. It is renowned worldwide for being the historical home of the Southern White Rhino, following the successful ‘Operation Rhino’ in the 1960’s driven largely by the park’s then-warden, Ian Player.

Dr. Player’s efforts brought the rhinos back from the brink of extinction. The park now has the largest population of Southern White Rhino in the world.

The success of this program has recently been compromised by a gruesome increase in rhino poaching within the park. This critical threat has not only become a great concern for the park, but for rhino conservationists worldwide.

Link to SaveOurWilderness.org for additional blogs and information about Dr. Player.

Call to action:

At THE CROWD VERSUS we can also use your help. We crowdfund for the litigation pending to stop the permitting of open cast coal mining, or the expansion of older, already present mines (Tendele).

We have several options to create the level of your involvement. You can donate or become personally involved by writing a blog, taking photographs, or entertaining friends with a dinner at home.

We look forward to seeing your ideas!

Environmental Watchdog Challenges Recent South Africa Ruling

29 March 2019; Published by Tony Carnie

An environmental watchdog has challenged a legal decision by a Pietermaritzburg high court judge, fearing that his ruling will encourage mining companies to disregard the country’s environmental protection laws.

The challenge has been mounted by the Cape Town-based Centre for Environmental Rights, after judge Rishi Seegobin dismissed an application in October to shut down the Somkhele coal mine — owned by Johannesburg-based Tendele Mining — on the periphery of the flagship Hluhluwe-Imfolozi Game Reserve in KwaZulu-Natal.

The centre has lodged an application to intervene as an amicus curiae (friend of the court) in an application for leave to appeal against Seegobin’s ruling.

The centre, represented by attorney Catherine Horsfield, said it was concerned that the ruling “may open the door” to companies disregarding environmental safeguards in the constitution.

The centre believes the Tendele verdict has broad national implications and could have a “profound influence” on the ability of government inspectors to monitor and enforce environmental laws in mining areas.

It could also provide “an excuse” for companies to operate outside the law and to strip legal powers from government enforcement officers.

The ruling may open the door to companies disregarding environmental safeguards …

The centre also said the judge’s punitive costs order against two community-based environmental groups would have a “chilling” legal effect that could cow other vulnerable people from mounting public-interest litigation against powerful mining companies.

In 2018, the Global Environmental Trust, the Mfolozi Community Environmental Justice Organisation and local resident Sabelo Dladla launched an interdict application against mine owners Tendele Mining, arguing that the mine was operating illegally.

Represented by attorney Kirsten Youens, they submitted that the Somkhele mine was operating with no environmental authorisation, no municipal planning approval, no waste disposal licence and no permits to shift ancestral graves.

Dladla also alleged in court papers that several homestead structures were cracking because of daily dynamite blasting at the open-pit coal mine, and several of his livestock had died or disappeared after wandering into mining land that had not been fenced off adequately.

Life had changed forever, said Dladla, with many local residents forced to leave their land and homes to make way for mining. They had lost access to grazing for cattle and other natural resources, and were also worried about the risks to their health from polluted air and water.

The mine painted a different story in court papers, denying that its operations were unlawful and arguing that nearly 1,000 mineworkers would lose their jobs if the mine was forced to close.

Seegobin threw out the application, noting that there had been a number of amendments to mining and environmental laws that took effect in 2014. He said these changes to the law also contained transitional provisions which permitted companies to continue existing operations without obtaining fresh environmental authorisation for listed activities.

If the amended laws did not contain these transitional provisions, said Seegobin, previously lawful mining operations would have been rendered illegal, overnight. “This would have been an unreasonable, insensible and un-businesslike result,” he commented.

Seegobin also suggested that senior officials of the departments of mineral resources and environmental affairs would have intervened against Tendele if they believed the mine was operating unlawfully or causing significant pollution or environmental damage.

Horsfield said the centre recognised that judges had discretion to award cost orders, but the National Environmental Management Act included a clause intended to protect people who sought assistance from the court, provided that they were acting reasonably, in the public interest or in the interests of the environment.

During a landmark public interest case involving the Biowatch Trust and the multinational group Monsanto, the Constitutional Court had reaffirmed the principle of not punishing unsuccessful litigants with crippling legal costs, provided their cases were not “frivolous, vexatious or manifestly inappropriate”.

Horsfield also attacked Seegobin’s assertion that government officials would have taken action against Tendele if they believed the company was contravening environmental obligations. There was no basis to assume that government officials were satisfied with, or had even considered the issues taking place at Somkhele mine.

Seegobin’s approach seemed “tantamount to introducing a standard of deference to functionaries” in the mining and environment departments that was not supported by law.

Responding in court papers, Tendele CEO Jan du Preez said his company did not agree with the legal arguments opposing Seegobin’s main ruling, but would not object to the centre being admitted as a friend of the court — provided it did not try to introduce new evidence.

Du Preez said his company would abandon all claims to the money awarded to it by Seegobin for legal costs.

“I hereby confirm that Tendele unconditionally abandons the costs order granted in its favour by this court…. The issue of the costs order granted in Tendele’s favour need accordingly not feature either in the amicus application, or in the application for leave to appeal,” the company said.

Seegobin has yet to make a ruling on whether he will grant leave to appeal.

This article also appeared in Business DayTimes Select on 28 March, 2019; and in SaveOurWilderness.org on 29 March 2019.

Amnesty International Public Statement re: South Africa

Published 7 February 2019

South Africa: Authorities must protect coastal community’s right to consent to future mining on their land

We from The Crowd Versus strongly support the following Public Statement, issued by Amnesty International’s about the visit by Gwede Mantashe, the Minister of Mineral Resources of South Africa, to the community of the Indigenous Amadiba community. They have been fighting for their #RightToSayNo for over twelve years now. Not many years ago, the community suffered when their leader Sikosiphe ‘Bazooka’ Rhadebe, the Chairman of the Amadiba Crisis Committee, was brutally murdered at his home on the Wild Coast in March of 2016. This remains a harsh reality for those people on the ground, who are brave enough to take on these big corporations.

In part, the Public Statement reads as follows:

“Amnesty International strongly condemns the failure of the Minister of Mineral Resources, Gwede Mantashe, to allow an effective voice to the Indigenous Amadiba community at a meeting held on the 16 January 2019. The meeting was part of ongoing consultations that the Department of Mineral Resources (DMR) initiated regarding proposed mining in the area.

As part of the meeting’s proceedings, the contested local traditional leader, King Sigcau, claimed that the Amadiba land belongs to him, and that mining will take place there. The King thereby effectively sought to exclude anyone else from the affected community, including women, youth who were at the meeting, from participating in decision-making on the future of mining on their land.

During a Question and Answer Session a man who claimed to be an Amadiba Crisis Committee (ACC) member, claimed that the ACC want mining. Since this view does not represent the views of the ACC who oppose mining, a commotion then ensued. The purported ACC supporter’scomments drew wide disapproval from community members present, resulting in the Minister bringing the meeting to a premature closing. Nonhle Mbuthuma, the ACC spokesperson, pleaded with him not to close the meeting, and asked which village the purported ACC supporter came from in Amadiba. Minister Mantashe ignored the question, however and exited the marquee.

Amnesty International is alarmed by the Minister’s misrepresentation of the Amadiba Crisis Committee (ACC) as having interrupted the meeting. In effect, the Minister’s actionsdisregarded affected community members who wanted to share their views on proposed mining in Amadiba, including environmental human rights defender Nonhle Mbuthuma, the spokesperson of the ACC. The government effectively excluded the community from the purported consultations.”

Link to Public Statement here

Application Against Tendele Coal Mining (PTY) LTD and Others (Summary)

Posted on December 13, 2018

Application for Leave to appeal filed

Below is a summary of the court case scheduled for 24 August 2018.

A list of relevant court papers and documents are provided below with links to download or view.

The Parties Bringing the Application Are:

  1. Global Environmental Trust
  2. Mfolozi Community Environmental Justice Organisation
  3. Sabelo Dladla

The Application Is Brought Against:

  1. Tendele Coal Mining (Pty) Ltd – opposed
  2. Minister of Minerals and Energy – no response
  3. MEC: Department of Economic Development, Tourism and Environmental Affairs – no response
  4. Minister of Environmental Affairs – no response
  5. Mtubatuba Municipality – no response
  6. Hlabisa Municipality – watching brief
  7. Ingonyama Trust – opposed but didn’t file affidavits in time
  8. Ezemvelo KZN Wildlife – will abide by the decision of the court
  9. AMAFA aKwaZulu-u-Natali Heritage Council – no response

Amicus Curae Applicants Who Submitted Papers in Terms of Rule 16(A) on 20 July 2018 Are:

  1. Mpukunyoni Traditional Council and Mpukunyoni Traditional Authority
  2. The 30 Izinduna of the 30 Isigodi of the Mpukunyoni Area
  3. Mpukunyoni Community Mining Forum
  4. Association of Mine Workers and Constructions Union and National Union of Mine Workers

The Application:

  1. Tendele is acting illegally in conducting the mining, in that it has no Environmental Authorization issued in terms of Section 24 of the National Environmental Management Act 107 of 1998 (“NEMA“), or any equivalent thereof, such as Section 38 A of the Mineral and Petroleum Resources Development Act 28 of 2002 (MPRDA), as amended.
  2. Tendele is conducting the mining without any land use authority or approval from any Municipality and has no written approval in terms of Section 35 of the KwaZulu-Natal Heritage Act 4 of 2008 to remove or alter traditional graves from their original position.
  3. Tendele also has no waste management licence issued by the Minister of Environmental Affairs (Fourth Respondent) in terms of Section 43 (1) or the Minister of Minerals and Energy (Second Respondent) in terms of Section 43 (1A) of the National Environmental Management: Waste Act 9 of 2008 (“the Waste Act”), despite requiring a licence as a result of its activities.
  4. Such non-compliance has resulted in Tendele carrying on its mining operations illegally, with the result that the residents in the area of Reserve 3 are suffering irreparable harm. This includes the Third Applicant.

1.6       A tranquil rural environment adjacent to a provincial game reserve has been destroyed and polluted by dust and noise. Homes have been removed or destroyed and the environment and the amenity of all who live there and the public at large has been destroyed and continues to be destroyed day by day. The wilderness has been turned into a vast industrial rock dump. Massive blasting takes place and the quality of life is being destroyed.

1.7       The family of Third Applicant has taken the matter up with Mineral Resources, the Centre for Environmental Rights, the Public Protector and the Mpukonyoni Traditional Administrative centre. Applicants have also appealed against the grant of the latest Mining Right. This appeal was rejected.

1.8       Applicants seek the interdict to ensure that Tendele is fully compliant with the law.

The Applicants Seek the Following Order:

1. THAT First Respondent be and is interdicted and restrained from carrying on any mining operations at the following sites: –

1.1  Area 1 on Reserve No. 3 (Somkele) No 15822 measuring 660.5321 hectares as described in the Mining Right dated 22nd June 2007;

and/or

1.2  Areas 2 and 3 on Reserve No. 3 (Somkele) No.15822 measuring 779.8719 hectares as described in the Mining Right dated 30thMarch 2011;

and/or

1.3  Areas of KwaQubuka and Luhlanga areas on Reserve No. 3 No. 15822 measuring 706.0166 hectares as described in the Amendment of a Mining Right dated 8th March 2013;

and/or

1.4  One part of the Remainder of Reserve No. 3 No. 15822 in extent 21233.0525 hectares described in the Mining Right dated 26thOctober 2016;

Until Further Order of this Honourable Court

2. THAT First Respondent pay the costs of this application together jointly and severally, with any other Respondent who opposes this application.

3. THAT Applicants be granted further and/or alternative relief.”

As an alternative the above Honourable Court may elect to grant a structured interdict. The Judge has requested that we provide an alternative to him by 22 August 2018.

The interdict being sought by Applicants is semi-temporary in that it is sought “until further order of this Honourable Court.” If Tendele complies with its legal obligations and establishes that it has done so, the interdict may be lifted.

The Amicus Curae Application

  1. Applicant’s case is based on our rights under Section 24 of the Constitution 1996, coupled with the non-compliance with the law by First Respondent under the environmental legislation and notices, mining law, land use law, and the legislation which protects graves. These are largely legal issues.
  2. The Amici hardly address these issues. They are more concerned with their own self-interest and the benefits to them that the mining brings, whether it is legal or not.
  3. The Applicants wish to have these irrelevant facts struck out. Not only are they irrelevant to the issues Applicant brings before the Court but there is no time to deal with these issues at this stage of proceedings.
  4. In the event that any part of the mass of facts put forward are considered in the interests of justice to be relevant and important, we submit details:
    1. Second Applicant has presently 2503 members. There are new members who are being processed from lists received recently, and more joining every day. This is because of the increased interest by the affected communities as the Court Hearing approaches. These members have an average of 10 dependants each. The numbers of people opposed to the mining and the unlawful activities of First Respondent are therefore at least 25 000 people;
    2. The Actionaid Social Audit Report compiled by Sifiso Dladla;
    3. A Pscyho-social Impact Assessment by Michael R. Edelstein PhD, Professor of Environmental Psychology, Environmental and Studies Programs at Ramapo College of New Jersey.

List of Court Papers and Documents

Save our iMfolozi Wilderness: Application for Leave to Appeal Filed

Posted on December 13, 2018

Media Release:

Application for Leave to Appeal filed – Global Environmental Trust, MCEJO and S Dladla vs. Tendele Coal Mining (PTY) Ltd.

PIETERMARITZBURG, SOUTH AFRICA

On Tuesday, 11 December, 2018, an Application for Leave to Appeal was filed in the Pietermaritzburg High Court in the case between Tendele Coal Mining (PTY) Ltd and the Global Environmental Trust (GET), the Mfolozi Community Environmental Justice Organisation (MCEJO) and a resident of Somkhele, Sabelo Dladla.

Incomprehensive Judgment

This application is in response to the incomprehensible judgment handed down by the Pietermaritzburg High Court on 20 November, 2018, in which the case was dismissed with costs.

Relevant Documents:

Document: Application for leave to Appeal

Judgement by Justice Seegobin 20 November 2018

Documents for the case heard on 24 August 2018

Notice of Motion

Founding Affidavit

Annexures

Support this case.

Shock Judgement in Tendele Interdict Application

20 November 2018

The incomprehensible judgement handed down by the Pietermaritzburg High Court this morning, 20 November 2018, dismissed with costs the application by Sabelo Dladla, the Global Environmental Trust (GET) and Mfolozi Community Environmental Justice Organisation (MCEJO). This will not go unchallenged.

In essence, the applicants approached the High Court when their attorney found the mine had no environmental authorisations issued by Department of Environmental Affairs (or the Department of Mineral Resources) for the listed activities associated with mining operations. This is particularly concerning given the close proximity of the mining area to the Hluhluwe-iMfolozi Park, and the critical biodiversity of the area that includes hundreds of protected plant species, plus the water scarcity and the thousands of rural farmers living in the area, many of whom have lost their land and their livelihoods to the mine.  Consequently, many Somkhele residents have been left impoverished as a result of the mine operating in Somkhele. This challenges the argument of the court that the mine has brought many benefits, including infrastructure, to the community. The recently conducted Social Labour Plan audit, conducted by ActionAid, was included in the submission to the court, and strongly challenges the narrative that Tendele mine has brought the benefits it purports. Bewilderingly Judge Seegobin does not mention this in his judgement, nor the South African Human Rights report on human rights abuses in Somkhele community nor the psychosocial impact report by Prof. Edelstein.

One of the main arguments by Judge Seegobin is that if the Minister of Mineral Resources was not so satisfied he would not have granted the additional mining rights.  Similarly, the late “Minister of Environmental Affairs would also have had something to say if it was found Tendele was acting unlawfully”. Consequently there were clearly no grounds to challenge the mine’s operations.

The judgement also argues that because the mine initially commenced operations before the implementation of the one mining system, there was no need for the mine to have obtained environmental authorisation and that an EMP is sufficient.

The judgement is extremely punitive in awarding costs when it clear that a mining affected community supported by an NGO brought this application in an effort to ensure that Tendele Mine is compliant, in the public interest.  In the Biowatch case, the Constitutional court ruled that lower courts should embrace the ruling made 8 years ago against punitive cost orders being awarded when challenges were brought against Monsanto a corporation that had unequal power and financial resources.

Kirsten Youens, the attorney for this case, states: “Far from being demoralised, GET and MCEJO see this as an important opportunity to take the matter to higher judicial authorities starting with the Supreme Court and even to the Constitutional Court, if necessary, to ensure justice is done and that law applies to all. They take courage from other mining affected communities, like the Lesetlheng community, who lost their case until eventually receiving a Constitutional Court ruling in their favour, setting important precedents for social and environmental justice for lower courts to follow.  The Tendele case is set to do the same.”

While our lawyers are busy preparing leave to appeal against this judgement, Tendele mine faces another challenge from the community. Last week, Sabelo Dladla and MCEJO filed a Review Application in the North Gauteng High Court to review and set aside the Director-General’s decision to grant Tendele a further 222km2 right to mine. The Application is also to review and set aside the Minister’s decision to dismiss the internal appeal that was brought against the Director General’s decision to grant the mining right.

Ban on Trade of Wild Animals in China Stands

GOOD NEWS! Ban on Trade of Rhino Horn and Tiger Parts in China Still Stands

 

19 November 2018

In October 2018, China’s government announced a decision that outraged conservation groups worldwide. China was planning to lift the 25-year-old ban on the trade of rhino horn and tiger parts.

The Chinese government argued that the use was only for ‘medical research’, using animals bred in captivity. Environmental groups spoke out against the plan and addressed the devastating effects. It is not possible to discern the difference between animals from the wild and from captivity once they have been destroyed.

Black market

Both tigers and Rhinos are endangered species. A black market for the use of parts of the animals already puts a lot of pressure on the population of wildlife. This lift would only make this pressure worse. It would confuse consumers and authorities about what is considered legal and what is not.

Postpone the decision

A few weeks later the official Xinhua News Agency reported that, after further study, they have decided to postpone the decision.

It is not clear if it would be permanent, but at this moment the old ban is still in force. This means that they prohibit the import and export, sale, transport, carrying and use of rhino horns and tiger bones.

This case proves again that public opinion and protest does have an effect, which is good news for these beautiful animals, who are part of the Big Five, and reserves all over the world, including the beautiful Hluhluwe-iMfolozi Wilderness area.

Original article: Reuters.com

Implications of the landmark 25 Oct. Constitutional Court decision

Implications of the landmark Constitutional Court decision for mining affected communities

26 October 2018

SYNOPSIS: 

Yesterday’s Constitutional Court of South Africa (ConCourt) judgment represents a hugely significant decision for communities and land owners. It means that mining companies who have obtained a mining right cannot simply go onto the land and start mining, as they could to date even without the agreement of the land rights holder.

The Court held that before mining starts there must be an agreement between the community and the mine on compensation. If that is not agreed, then compensation must be determined by the court or by arbitration before mining can commence.

The Court also held that the award of a mining right does not override the community’s rights as owners or lawful occupiers.

EFFECTS OF DECISION:

In a situation like that at Somkhele and Fuleni this decision has huge significance.

The mining companies always offer minimal compensation, an RDP house and a few thousand rand cash to compensate each family, and then to start mining.

When offers are refused by the community, the bulldozers advance destroying lands and resources. So, even as the “negotiations” continue, life becomes increasingly intolerable until resistance appeared futile and community members capitulate and agree to be resettled on the mine’s terms.

This is a pattern that has repeated itself many times in the past.

This should not happen anymore.

 

If the mine doesn’t offer a fair deal, which, in this context, means simply that the community member’s lives should be better not worse after mining, then mining won’t happen until such time as a court or an arbitrator has considered the compensation on offer and ruled on it.

In front of a court we would be arguing for compensation not only for our land and our homes and the lost livelihoods, but also to be compensated for the loss of community, the harm done to our culture and our traditions and our way of life.

Compensation would not necessarily be limited to cash. On the contrary we would expect programs to restore livelihoods and to re-equip us to live in a changed world. Women who would otherwise be engaged in subsistence farming would need to be trained and re-skilled for other livelihoods. Children would need to be properly schooled and equipped to live a modern life.

IMPACT OF DECISION:

The impact for a community like that of Fuleni and Somkhele would be significant. Mining for coal may be economical if you can get away with an RDP house and R100 000 per family, but it may not be economical if you are obliged to provide alternative land (hectares of indigenous bush and grazing land costs a lot of money) and to compensate for lost livelihoods and the social and economic networks that have sustained the community for generations.

Let’s face it, this kind of mining expansive open cast could never be undertaken in Europe or even in Australia, the cost of compensation is simply too high.

Mining is viable in much of Africa because you can get away with a 4×4 for the Chief, a backhander to the local politicians and a bunch of lousy RDP houses. The reality is that many of those whose land and livelihoods are taken from them by mining are left worse off and not better off than they were before.

The decision does not go so far as to affirm the right of community’s to say no. The court says that this is a question to be answered on another day, but it is a huge step forward.

It’s not a guaranteed outcome but certainly for the first time communities that are well advised and supported will be well placed to ensure that they actually benefit from mining on their land and are not impoverished thereby.

[Paraphrased from Richard Spoor’s summary on 25 October 2018]

Other links on this topic:

The full judgement of the Constitutional Court of South Africa

Ruling ‘fundamentally changes power dynamics’ as communities win big in ConCourt

Landmark ConCourt judgment says mining rights do not trump lawful land occupier rights

South Africa’s top court ruling curtails power of chiefs to cut mining deals

Interview with Attorney Richard Spoor

Mayor cancels meeting with DMR Task Team and Somkhele community

Mayor cancels meeting with DMR Task Team and Somkhele community

Community confer outside meeting

 

“I am astounded at the lack of respect given to my clients in these forums. The Agenda was particularly offensive after the tumultuous events in Somkhele and Xolobeni two weeks earlier and given that we attended a meeting where DMR would finally be listening to grievances of the community. The bias towards the mine was so evident. This immediately made the whole process untrustworthy. What could have been a first-time opportunity for hearing and investigating the suffering and  grievances of affected community members as a first step to making amends, instead, it turned out to be an unfortunate waste of everyone’s time and money, which included the expense of flying twenty experts that did not include any other government departments.” – Kirsten Youens, attorney for MCEJO.

In support of the Mpukunyoni community, mayor Velangenkosi Gumede of Mtubatuba called for the cancellation of the two day task team meeting at the Umfolozi Protea Hotel on 1 and 2 October. The task team comprised twenty experts. The meeting was organised by the Department of Mineral Resources to address complaints and human rights issues perpetrated by Tendele mine that emerged during minister Gwede Mantashe’s visit to Somkhele last Saturday. The agenda for the meeting gave the floor to Tendele mine and included items that raised sub judice issues pending the outcome of the Pietermaritzburg High Court application that Tendele is operating without required environmental authorisations, land planning and or a waste management licence..

When the following agenda was circulated, community members representing numerous community organisations responded angrily because it showed complete disregard for the people who suffer on a daily basis because of the operations of Tendele mine:

1.Presentation by DMR on legislative framework

2.Presentation by Tendele on:

2.1. Status of compliance with all aspects of the mining rights

2.2  Relocation plans

2.3  Dust and water monitoring

2.4  Status of court case brought by NGO’s

3.Community representatives to report on historic and proposed relocations

4.Discussion on proposed relocations of the Ophondweni and Emalahleni communities.

(view agenda here)

Before the DMR chairperson could even welcome everyone, members of the community were raising issues with the choice of venue that was so far from Somkhele and not big enough to accommodate everyone. The community complained about the lack of transport that had been made available for them and the personal cost in attending the meeting. The agenda was hotly challenged. The chairperson confirmed that Tendele had paid for the venue and the food.

When it became evident there was no possibility of DMR being able to remedy the situation, the mayor conceded that the meeting had been badly planned and was in the wrong venue. He agreed with the community that it should be cancelled.

A few members of the community, including Mr Nkosi from the Concerned Group, remained behind to discuss a follow-up meeting and give suggestions on how an agenda should be drafted with the DMR task team and the Mtubatuba mayor and municipal leaders. The community representatives urged DMR not to side with or work hand in hand with Tendele mine to organise the meeting as they did with the abandoned meeting. The DMR task team should liaise with the Mtubatuba municipality, not Tendele mine, as the municipality commonly organises community meetings and informs concerned parties.

Mr Nkosi suggested that a new agenda should be drafted by all stakeholders and all community groups and that other government departments must be represented, not only Tendele Coal Mining and the DMR task team. This idea was supported by the mayor who recommended this planning meeting should take place on municipal premises.

The venue for the task team meeting should be in the Mpukunyoni community, like the Somkhele sports ground where the previous meeting with the minister took place on 22 September. People from affected villages should be transported to the venue and not have to pay their own transport to attend a meeting called by DMR.

Before the new meeting, Tendele Coal Mining would have to provide the DMR task team with documents with the relevant facts about their previous/current operations and promises made to the community since the mine started operating in Somkhele.

Additionally, it was suggested that Tendele mine representatives should accompany the site visits proposed by DMR to witness firsthand the impacts on affected sites/households.

The DMR task team should include other departments such as, the Department of Environmental Affairs, Health, Cooperative and Traditional Governance, Water and Sanitation, Education, and other relevant stakeholders.

The community representatives handled a potentially tense situation calmly with a strong united voice.

Somkhele community members after the meeting