South African Appeal Case Challenges Business-as-Usual Attitude of Coal Mine Company

Originally published by SaveOurWilderness.org on 18 September 2019; re-published with permission.

On Tuesday, 17 September 2019 at 9h30, Judge Seegobin granted the Global Environmental Trust (GET) and the Mfolozi Community Environmental Justice Organisation (MCEJO) the right to take their matter to the Supreme Court of Appeal in Bloemfontein.

The attendance at the Application for Leave to Appeal in the Pietermaritzburg High Court the previous week on Wednesday, 11 September, indicated that the case is gaining recognition as significant in bringing clarity to an area of law that no court has ruled on yet.

The involvement of the Cape Town based Centre for Environmental Rights (CER) as amicus curiae (friend of the court), with both representative attorneys Catherine Horsfield and Max du Plessis being present in the court, was valuable in assisting Judge Seegobin with aspects of the case that had been less clear during the initial court appearance a year ago. Having Adv. Tembeka Ngcukaitobi to represent GET & MCEJO, who also represented the Amadiba Crisis Committee in their #Right2SayNo campaign against the mining of the Xolobeni dunes, also elevated the status of the Tendele mining case. 

The main issue concerns disagreement about the role, before 2014, of the National Environmental Management Act (NEMA) under the then Department of Environmental Affairs, and the Minerals and Petroleum Resources Development Act (MPRDA) under the Department of Mineral Resources.

Ngcukaitobi and du Preez argued that both pieces of legislation needed to be complied with, which required Tendele mine to have an environmental authorisation based on an environmental impact assessment, required by NEMA, and the Environmental Management Plan required by MPRDA.

Tendele’s lawyers argued that the MPRDA trumped NEMA and that, given Tendele had an approved environmental management plan report (EMPr) required by MPRDA, then this was sufficient, and the mine was compliant.

If there are reasonable prospects that the Supreme Court of Appeal would come to a different conclusion or if the matter is of sufficient public importance, which raises novel issues worthy of attention of the Supreme Court, then Judge Seegobin was obliged to grant leave to appeal. The cases cited by Ngcukaitobi and du Preez provided support that another judge would support their view. 

Further to the appeal, Ngcukaitobi and du Preez presented very strong grounds that another judge would likely come to a different decision about awarding costs against civil society organisations (in this case, GET and MCEJO) that had brought a matter of public interest to court. Based on the Biowatch ConCourt judgement, as well as several other cases, it became clear that this alone opened the way for the right to appeal to be granted.

Tendele’s legal team and even Judge Seegobin played down the importance of the costs order by saying that the mine had agreed not to pursue this and so, in a sense, the costs order no longer existed. Attorney du Preez was particularly vocal about the judgement being on SAFLII, the legal register of reported cases that judges and magistrates rely on when coming to a decision based on precedent. He argued that it is critically important that this judgement, with its potentially chilling effect on civil society to approach the courts with constitutional matters, has to be contested and overturned.

Kirsten Youens, lead attorney for GET and MCEJO, sees the tide turning for her 4 000 clients who constitute the MCEJO organisation in Somkhele, South Africa.

“It has been a long road. They have suffered since 2007, when Tendele started mining without environmental authorisation or meaningful compensation to land rights holders. Finally, my clients can see that the legal system serves them too and the law applies to all. I and the incredible team of public interest lawyers that support me, will continue to fight together with GET for the rights of MCEJO, the environment and for justice to be done.”

Attorney Kirsten Youens
Mr Gednezar Dladla, center, addressing the community

Sabelo Dladla, the second applicant in this matter, was delighted to receive the news of the appeal on the same day he turned 24 years old. “This judgement is the best birthday present I could ask for. Thank you, Kirsten and our legal team.”

Dladla, an ecotourism graduate, grew up next to Tendele mine and helplessly watched while his parents lost their wealth, after their grazing land was taken away from them by Tendele mine — without compensation. At the funeral of his father, the well-known activist Mr Gednezar Dladla in 2015, Sabelo promised to all those present that he would take over the struggle against Tendele mine, in the name of justice for the residents of Somkhele for whom his father had so valiantly fought. This Sabelo Dladla has done. 

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The Crowd vs. Destructive Mining in Zululand

Coal companies and the South African government have to stop with coal mining that puts Zululand and its people in danger and threatens the world’s greatest concentration of rhinos in the wilderness area of the Hluhluwe-iMfolozi Game Reserve.  Read more …

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Critical High Court Application Pushes for Mining Sector Compliance

On Wednesday, 11 September 2019, in the Pietermaritzburg High Court, South Africa, a strong legal team is determined to ensure the right to appeal the dismissal of GET & MCEJO’s application exposing Tendele coal mine’s lack of compliance with environmental laws and the Constitution, and to ensure the mining sector complies with the law.

MEDIA RELEASE – FOR IMMEDIATE RELEASE

Originally published 10 September, 2019, by SaveOurWilderness.org

Pietermaritzburg, South Africa – On Wednesday, 11 September 2019, at 9h00, the Application for Leave to Appeal last year’s ruling in favour of Tendele Coal Mining (Pty) is set to be heard in the Pietermaritzburg High Court.

On 20 November 2018, Judge Rishi Seegobin dismissed the application by the Global Environmental Trust (GET), Sabelo Dladla, a 24-year old activist who grew up next to the Tendele mine, and the Mfolozi Community Environmental Justice Organisation (MCEJO) that challenged Tendele’s non-compliance with environmental, planning, waste management authorisations, and cultural heritage legislation.

The judge ordered GET and MCEJO to pay the legal costs of the mine.

Setting

Tendele mine is situated 6 km away from the iMfolozi Wilderness Area, part of the historic Hluhluwe iMfolozi Park (HiP) and a sanctuary for rhinos for 110 years, drawing thousands of local and foreign visitors every year. The mine has been operating since 2007 without any environmental authorisations or a waste management licence.

At the time of the judgment last year, attorney Catherine Horsfield, who represents the Cape Town-based Centre for Environmental Rights (CER), expressed concern that the ruling has broad national implications. Specifically she stated that it “may open the door” for companies to disregard environmental laws and safeguards in the Constitution of South Africa. Ms. Horsfield also considered the judge’s punitive costs ordered against two community-based environmental groups to have a “chilling” legal effect. She feared it might negatively impact other vulnerable peoples from instituting public-interest litigation against powerful mining companies. CER has applied to be amicus curiae (or friends of the court for MCEJO and GET) in the Application for Leave to Appeal. Ms. Horsfield and advocate Max du Preez will attend the hearing to provide additional information to the court.

The legal team that will represent Mr. Dladla, GET and MCEJO on 11 September include lead attorney, Kirsten Youens, assisted by Janice Tooley Attorneys, EIA specialists; Johan Lorenzen of Richard Spoor Attorneys; and advocates Mawande Mazibuko and Tembeka Ngcukaitobi. The team is determined to obtain leave to appeal Judge Seegobin’s ruling in the Supreme Court in Bloemfontein.

Two independent publications, one by the South African Human Rights Commission and the other by Human Rights Watch, cited Tendele as one of the mines disregarding the human rights of mining affected communities in SA, with the Somkhele/ Mpukunyoni residents being one of them.

This will open the way to achieving support from the South African courts into greater compliance by the mining sector. And, this court case gives an opportunity to South Africa’s judicial system to the coal mining sector that companies in breach of the country’s laws and regulations.

With the Global Climate Strike taking place on 20 September 2019, there is strong evidence of increasing momentum to hold companies and governments to account and to put pressure on them to reduce fossil fuel expansion and dependence in order to prevent the increasing threat of devastating climate impacts.

Wednesday 11 September 2019 offers an opportunity for South Africa to demonstrate alignment with this international trend for sustainability.

CONTACT:  Kirsten Youens, youens@youensattorneys.co.za or Sabelo Dladla, sabelodladla1@gmail.com.

Want to help? You may donate below — with our deep appreciation!

The Crowd vs. Destructive Mining in Zululand

Coal companies and the South African government have to stop with coal mining that puts Zululand and its people in danger and threatens the world’s greatest concentration of rhinos in the wilderness area of the Hluhluwe-iMfolozi Game Reserve.  Read more …

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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.