“Xolobeni lawsuit: Activists Denied Access to Documents for Defamation Defence”, 1 Jun 2019
The Western Cape High Court denied two attorneys and an activist opposing Mineral Sands Resources’ parent company’s plans to mine in Xolobeni access to documents which they hoped to use to defend against a defamation suit from the company.
The company that is looking to start mining in the heritage site community of Xolobeni in the Eastern Cape is taking environmental activists and attorneys to the Western Cape High Court for defamation. The two plaintiffs are Mineral Sands Resources – a subsidiary of Australian mining company, Mineral Commodities – and Mineral Sands Resources director, Zamile Qunya.
The defendants maintain that the defamation application is a “slapp-suit” intended to intimidate and financially exhaust their campaign. They made an interlocutory application for access to documents they said would prove their remarks constituted fair comment and not defamation. CER executive director Melissa Fourie said the organisation remained committed to resisting the threat that MRC’s “slapp suits” posed to civil society’s Constitutional rights to freedom of speech, freedom of the media and academic freedom.
“We are disappointed with the judge’s ruling. However, we are not deterred. This case is about defending the Constitutional right to freedom of speech and is of fundamental importance to activists defending the environment everywhere. We will continue to fight these claims until justice is served,” said Fourie.
For further background reading, link here to 28 May 2019 Fin24 article, by Khulekani Magubane, entitled “Activists Accuse Aspiring Xolobeni Miner of Malicious Litigation”.
With sadness and our sincere condolences for his family, friends, colleagues, and fellow activists, we share the following news from the Philippines.
“The shooting of Dennis Sequeña, while he was conducting a labor rights seminar, is a particular blatant act of violence against workers exercising their freedom of association. This should not be happening ten years after the ILO HLM,” according to René Magtubo, the National Chair of the Partido ng Manggagawa (PM) labor political party, insisted.
Dennis Sequeña, labor organizer and human rights defender, political activist, was a National Council member of PM and the Vice Chair of its provincial chapter in Cavite.
What makes this even more poignant, is that Dennis Sequeña is the second PM labor party member killed since 2016. Back in September 2016, Orlando Abangan, PM-Cebu leader and informal worker organizer of the labor center Sentro, was shot and killed.
The day following the murder of Dennis Sequeña, 3 June 2019, Senator Hontiveros-Baraquel filed a resolution for the Senate to investigate the killings of labor activists in the Philippines, in order to properly legislate the unresolved labor issues there. Link to Facebook page of Senator Hontiveros.
Friday 31 May 2019 was an important day for the case supported by The Crowd vs. Destructive Mining in Zululand. Attorney Kirsten Youens, and second Applicant and Treasurer of the community organization, MCEJO (the first Applicant), Sabelo Dladla, filed supplementary founding affidavits in the application to review and set aside at 222 square km mining right for open cast coal.
Call to Action:
Kirsten Youens shares special moments with you, while working on the case. Do you want to know more about it, or support her legal battle?
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?
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.
The document proclaims the rights to which every human being is entitled. No matter the race, color, religion, sex, language, political or other opinion, national or social origin, property, birth or other status.
The recognition of equal rights for all is a precondition for sustainable societies. Equality, justice and freedom prevent violence and sustain peace. Unfortunately, these rights are constantly challenged.
Standing up for our rights, or supporting others in their battles, remains essential; whoever and wherever you are.
On this special 10 December day, we present to you four extraordinary lawyers who stand up for the rights of others. They do this with long hours in cases that can change the historical legal doctrines of corporate interests and governmental policies.
1. Karey Brooks
In Canada, JFK Lawyer Karey Brooks battles in court to stop tarsands mining, to protect the world’s most important carbon sinks, and to hold the Alberta province and Canada accountable for breaking their constitutional promise to the Beaver Lake Cree First Nation.
2. Kirsten Youens
In South Africa, Kirsten Youens fights in court to stop the coal mining activities of the South African government that puts Zululand and its people in danger and also threatens the world’s greatest concentration of rhinos in the wilderness area of the Hluhluwe-iMfolozi Game Reserve.
#SaveOurWilderness #StopTendele #LawApplies2All
3. Pablo Fajardo Mendoza
In Ecuador, Pablo Fajardo Mendoza supports the Amazon people in a landmark case to legally force Chevron to create health programs for the 6 indigenous nations and repair their lands, after one of the worst environmental disasters of all times. Pablo received the 2015 Goldman prize in recognition of his long and arduous work and we are honored to help his team.
In Mexico, Lawyer René Sánchez Galindo fights to stop Monsanto and other multinationals from growing genetically modified or GM corn that will force all farmers to grow GM corn, will harm biodiversity, and ultimately puts Mexican cultural heritage and way of life at risk.