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

STORMS DURING MINISTER MANTASHE’S WHIRLWIND TOUR OF KZN & XOLOBENI

STORMS DURING MINISTER MANTASHE’S WHIRLWIND TOUR OF KZN & XOLOBENI

By Sheila Berry

Minister Mantashe’s whirlwind three day roadshow to major mining hotspots in KZN and the Eastern Cape last weekend has understandably focussed on the arrest of human rights attorney Richard Spoor and the tear gassing and use of stun grenades against protesting Amadiba Crisis Committee (ACC) members in Xolobeni, on Sunday 22nd September.

Bench Marks Foundation media statement  , Daily Maverick article. 

However, it is important to place on record that the minister’s visits to the two communities in Northern KZN bordering the Hluhluwe Imfolozi Park (HiP) were also not without incident, though not as dramatic as the scenes from Xolobeni.

These visits dashed the hopes of many for open, honest and even-handed engagement with minister Mantashe. Like his predecessors, he has been brazenly pro mining, and it was clearly a tactic on this tour to block genuine voices of communities impacted by mining. It has left many people dissatisfied that meaningful consultation with directly affected communities and the minister is possible.

On Friday, 21st September, the minister spent five hours meeting with Zululand Anthracite Colliery (ZAC) and left the expectant KwaMlaba/Ukhukho community members waiting for hours for their chance to speak to Mantashe – an opportunity denied to them. Instead, when the minister eventually emerged from the mine, he and  various other pro-mining speakers spent the next forty minutes praising ZAC, a mine with a long history of ignoring legislation, worker unrest, strikes, violence, and community dissatisfaction and complaints that go unheard.

In 2015, ZAC was exposed for illegally opening three new pits without the necessary environmental authorisations, and was found guilty of contravening the Minerals and Petroleum Resources Development Act (MPRDA) and non-compliance with health, safety and environmental regulations, and was temporarily closed in June 2014. Concerns about acid drainage and contamination of water sources that feed HiP were also raised that have yet to be satisfactorily addressed.

Last year, two activists were murdered: one was shot by a driving contractor for ZAC and another man was beaten to death by two policemen from Pinetown, 250kms away! To date, no arrests have been made though the identity of the murderers is known.

The Ukhukho community has also strongly objected to a depot for mine waste set up in their community and opened with great fanfare by King Zwelethini two years ago. Even more significant was the closure of ZAC by Department of Mineral Resources (DMR) officials on Monday, 16th September, the week of the minister’s visit. It had not operated all that week yet not one word was said about this. The mine resumed operations the Monday after the minister’s visit, on 24th September.

Without giving the aggrieved community a chance to say one word, the minister announced that it was getting late and he needed to leave. He and his entourage climbed into their vehicles and drove off leaving behind stunned and deeply disappointed community members. One should not be surprised or blame the frustrated community if there is an escalation in the burning of coal trucks, strikes and picketing that has become the hallmark of ZAC’s operations.

On Saturday, 22nd September, the minister repeated the same process at Somkhele on the eastern side of HiP, near the main entrance to the Park. He spent three hours inside Tendele mine, engaging with mine management, trade union members and workers. Again, when he eventually met with the long-suffering community,  there were the usual speeches of praise – this time about Tendele mine and the CEO, Jan du Preez, for the good work and benefits they bring to the community. No mention was made of the recent High Court application against Tendele by the community organisation MCEJO and GET for the mine’s lack of compliance and other complaints [Links here and here].

After the speeches, the minister walked out without giving the Somkhele/Mpukunyoni community an opportunity to speak. With one voice the tent erupted.

Since 2004, directly affected community members have tried without success to engage with the various ministers and the Department of Mineral Resources of South Africa. On Saturday, when they saw the door being shut in their faces again with all the attempts that were made to make sure community members were not given a chance to express their collective pain, they rose up and said No! Minister Mantashe come back. We demand to have an opportunity to present our issues and be heard by you.  This surely would not have happened if the minister had had his way and another expensive opportunity would have been missed by the government of hearing evidence that rectifies the distorted one-dimensional engagements that typify DMR’s modus operandi. It is apparent that minister Mantashe and his department had all the intentions of sabotaging their own visit.

Mantashe was forced to return and appease the angry gathering and had to give the floor to the community. He allowed only seven speakers who criticised the mine and repeatedly called for justice to be served and for the law to be be applied. Affected community members, who have lost their sources of income and have had their lives and health destroyed by living in close proximity to the mine, spoke openly about their suffering. All the stories were about how Tendele is impacting on people’s human rights and the negative impacts on the lives and livelihoods of the greater Mpukunyoni area. A 56 year old Mr Ndlovu, broke down and wept as he narrated how, after being removed from his home, he struggled to lay daily bread on the table for his children. More testimonies followed as the community spoke of their suffering and poverty resulting from mining in the area that takes away and pollutes their land and water.  One woman had with her, a bottled sample of polluted water from her tank at home.

Not one person spoke in favour of the mine or mentioned anything positive about Tendele.

The impacts of the mine also threaten the HiP, KZN’s flagship tourist attraction, established 110 years ago as a sanctuary for the last remaining pocket of Southern White rhino on the African continent, and providing thousands more sustainable jobs than the coal mine right on the Park’s boundary that the minister has allowed to expand by a massive 222km2 for the next 30 years until 2046.  This despite the SA signing international protocols and treaties committing the country to decreasing our dependence on fossil fuels, particularly coal. The reality is that in 2015, the coal mining sector, arguably the most environmentally damaging mining activity, accounted for about 0.5% of the national workforce. With the technical developments rapidly being favoured by the mining industry, like self-drive vehicles, and robots for security, the number of jobs currently filled by local community members is likely to decrease dramatically.

By the end of the input from the community that included handing over memoranda (view PDF – Zulu) prepared by two community organisations, MCEJO and Mpukunyoni Community Property Association (MCPA), the minister promised that DMR would assemble a task team to address the issues raised by the community. Its first meeting(s) will be held on Monday 1st and Tuesday 2nd October 2018 at the Protea Hotel, an unfortunate venue choice. Before its conversion into a 3-star hotel, it was used by the apartheid regime as a place to torture and murder so-called “enemies of the state”.

From Somkhele, the minister and his department travelled to the much publicised violent visit in Xolobeni. When Richard Spoor appeared in court last week he was charged with assault of a policeman, refusing a lawful order, and incitement to public violence. The case was remanded until 25 October.

Meanwhile the government is still to deal appropriately with the Marikana massacre and to prioritise the arrest of the two men, posing as policemen, who murdered Sikhosipi Bazooka Radebe, a leading activist in Xolobeni, who was shot seven times in the head in front of his 15 year old son. This happened more than two years ago. There are several other deaths of anti-mining activists nationwide fighting for justice that remain unsolved and numerous anti-mining activists across the country continue to be subjected to intimidation, violence, damage to property, and their lives threatened.

One thing that became clear during the minister’s tour is how effective mining is at splitting communities into a few beneficiaries who are decision makers on one side and the masses who are left with nothing on the other side.

iMfolozi: war against mine greed – The Sunday Tribune

iMfolozi: war against mine greed – The Sunday Tribune

Sheila Berry meets residents of Somkhele, where coal mining operations have had a negative impact on communities and the environment.
By Liz Clarke

 

“Enough is enough. We will not move!” This is the heartfelt cry from a rural community in KwaZulu-Natal, whose members believe that ongoing coal operations affecting a wilderness area, which is home to the Big Five, has to stop.

The area under threat is the iMfolozi wilderness area, part of the Hluhluwe iMfolozi Park, where coal mining activities in Somkhele are causing irreparable damage to the environment and impacting negatively on the community.

A month ago, the neighbouring Fuleni community learnt that Imvukuzane Resources is applying for a prospecting right over the whole Fuleni Reserve, an extensive area that runs along the south eastern boundary of the iMfolozi Wilderness.

Among those assisting the neighbouring community in their determination to halt the mines and any further mining concessions is the Global Environmental Trust (GET), whose ambassador, Sheila Berry, spoke to us about the trust’s goal and mission.

“There is so much passion and courage in these communities. The people are determined that any further plans to mine for minerals like coal in their area is an absolute no-no and must be stopped.

“When you listen to the heart-breaking stories of families who, far from benefiting from mining, have seen their homes, livelihoods and communities destroyed, you realise that their cry for help is part of a global call for radical intervention and immediate action.”

”The area under threat of mining abuts the iMfolozi wilderness reserve, part of a sanctuary set aside for the Southern White Rhino 110 years ago, one of the most endangered species on the planet. It is where the battle to save rhinos from extinction is ongoing.”

“Communities living next to this protected wilderness, where their ancestors used to live, have an innate respect for the environment,” says Berry.

“Rural Zulu farmers have generations of knowledge and traditional experience of how to use the environment for their wellbeing and many are dedicated to ensuring the wellbeing of the environment and forests, streams and other places sacred to them.”

“It is a symbiotic, beneficial partnership that has lasted for centuries and they certainly don’t want to see it destroyed.”

Berry explains how the GET trust works.

“What the trust does, is to assist vulnerable communities to seek justice in a way that is constitutionally acceptable and upholds human rights and human dignity, as well as the rights of nature.”

“The law applies to all, including the mines. The Get recently discovered that the Tendele coal mine has been operating illegally for years and on August 24, our case will be heard in the Pietermaritzburg High Court.”

” The footprint of the mine, which is on the eastern boundary of the Hluhluwe-iMfolozi Park as one enters it, has been increased by a massive 222km2 that will affect thousands more people over the next 30 years, until 2046.”

“GET and the Mfolozi Community Environmental Justice Organisation (MCEJO) appealed against the mining rights, but the minister turned down the appeal and so now we have to take it on review to the Pretoria High Court.”

“We have to keep up the pressure for what is just and right – an enormous challenge in the current climate.”

The current heated discourse on the expropriation of land without compensation has, says Berry, brought the question of community justice and protest action to centre stage: “It is not going to go away. Somehow the country has to deal with the fact that so much land in South Africa is governed by private trusts like the Ingonyama Trust in KZN and a large proportion by the country’s municipalities.”

Within the ambit of expropriating land without compensation is, Berry says, the whole question of mining and mining concessions.

“Vulnerable communities could face the prospect of having their land literally snatched from beneath their feet with little or no redress. This is where organisations like GET and affiliated NGOs play a significant role.”

More than three decades ago Berry, a psychology graduate, was introduced to the founder of the Wilderness Leadership School, the late Dr Ian Player.

“His passion and concern for the environment and the Earth’s indigenous flora and fauna was inspiring. He made you understand there was no time to lose in trying to make a difference.”

“I joined the Wilderness Leadership School and, before long, left the corporate world behind for good. For me it was the start of an incredible journey of learning and under-standing. I am still very much on that journey. In many ways it has only just begun.”

Working hand-in-hand with the organisation, EarthLore, Berry, who is now its director, believes South Africa’s strong NGO community is playing a significant role in promoting the concept of social and environmental justice.

EarthLore, Berry explains, focuses on the environment and traditional farming practices and governance, looking at issues such as food sovereignty, sustainability, drought and climate change. EarthLore says Yes to Life while GET says No to Mining!

“Given the enormous challenges facing the planet, there is an imperative for like-minded people and civil society and NGOs to work together to achieve our goals of a better quality of life and to wage war against greed and exploitation, particularly when it affects the environment and those with few resources to fight back.”

For Berry, there is no question of backing away: “I’m in for the long haul. That’s the way it is.”

This article first appeared in the Sunday Tribune on 5 August, 2018.

New Mining Threat Looms – Zululand Observer, Tamlyn Jolly, 12 July 2018

New Mining Threat Looms – Zululand Observer

The 2016 scene of violent protests by the Fuleni communities in trying to get Ibutho Coal to stop mining their area PHOTO: Rob Symons

By Tamlyn Jolly

Just as the dust had settled on the Fuleni communities’ successful fight against an opencast mine on their doorstep, another mining company has applied for a prospecting licence in the same area.

After much protesting and hostility from the Fuleni communities, Ibutho Coal in 2016 gave up its attempts to mine the Fuleni reserve.

Imvukuzane Resources is now attempting to mine the same area, and the battle is back on.

Together with Global Environmental Trust and Ezemvelo KZN Wildlife, the Fuleni communities strongly oppose this prospecting application and will, once again, not back down without a fight.

The mine would be on the boundary of Hluhluwe-iMfolozi Park’s wilderness area, the oldest proclaimed wilderness area in the world.

Apart from potential poaching threats, the continuous lights, noise, blasting and pollution would negatively impact the game reserve and wilderness area, as well as surrounding communities.

In other mining news, Global Environmental Trust’s appeal against Tendele Mining’s 222 square kilometre expansion was turned down by Minister of Mineral Resources, Gwede Mantashe.

He found that Tendele’s application was rightfully adjudicated in terms of the now repealed Section 39 of the Mineral and Petroleum Resources Development Act (MPRDA).

He further said the amendments in both MPRDA and the National Environmental Management Act (NEMA) do not apply retrospectively and that the Acting Director General rightfully considered the provisions in the unamended MPRDA.

The regional manager has confirmed consultations with interested and affected parties.

This article first appeared in the Zululand Observer