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?
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.
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.
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.
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:
Global Environmental Trust
Mfolozi Community Environmental Justice Organisation
The Application Is Brought Against:
Tendele Coal Mining (Pty) Ltd – opposed
Minister of Minerals and Energy – no response
MEC: Department of Economic Development, Tourism and Environmental Affairs – no response
Minister of Environmental Affairs – no response
Mtubatuba Municipality – no response
Hlabisa Municipality – watching brief
Ingonyama Trust – opposed but didn’t file affidavits in time
Ezemvelo KZN Wildlife – will abide by the decision of the court
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:
Mpukunyoni Traditional Council and Mpukunyoni Traditional Authority
The 30 Izinduna of the 30 Isigodi of the Mpukunyoni Area
Mpukunyoni Community Mining Forum
Association of Mine Workers and Constructions Union and National Union of Mine Workers
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.
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.
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.
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;
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;
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;
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
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.
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.
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.
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:
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;
The Actionaid Social Audit Report compiled by Sifiso Dladla;
A Pscyho-social Impact Assessment by Michael R. Edelstein PhD, Professor of Environmental Psychology, Environmental and Studies Programs at Ramapo College of New Jersey.
Last week, Alberta Premier Rachel Notley announced a cut in tar sands production.
A drop in prices for dirty bitumen has been blamed on lack of pipeline capacity, which has been blamed on RAVEN Trust. Besides this, RAVEN Trust has enjoyed other major accomplishments: an overview.
RAVEN Trust’s Accomplishments
By backing Indigenous Nations in court, RAVEN Trust stopped Enbridge. Together with and thanks to the Tsleil Waututh, Squamish, Coldwater and Secwepemc Nations. All these collaborated to stop the (formerly Kinder Morgan) TransMountain pipeline expansion.
Over a Million Canadian Dollars
By harnessing the power of cutting edge, digital organizing, tools, RAVEN Trust invited dedicated people to help. These people supported by donating, fundraising online, and organizing events. These people helped to raise over a million dollars (and counting) to fund game-changing court cases. These cases have forced the government and industry to take Indigenous rights seriously.
A Winning Streak in the Canadian Courts
At this moment in history, Indigenous First Nations are on an unprecedented winning streak in the country’s courts. These wins are setting powerful precedents that will reshape our common future.
The impact of RAVEN Trust’s work writes the landscape.
Held Off Open Pit Mining
RAVEN Trust prevented two major pipelines from transforming the Pacific coast into a fossil fuel export superhighway. They have held off open pit mining in the Tsilhqot’in. They have sent LNG giant Petronas packing. And they pushed back against industrial development of the Yukon’s pristine Peel Watershed.
RAVEN Trust Circle of Allies
RAVEN Trust started the ‘Circle of Allies’. The time is now. Together we pull harder, because the gains made are counterbalanced by a ruthless fossil fuel industry. This fossil fuel industry grows more desperate as its climate impact becomes irrefutably clear.
While the world teeters on the brink of climate catastrophe, the cost of inaction is just too great.
We can wallow in despair or we can use our collective power to turn the tide.
RAVEN Trust invites people to join their Circle of Allies, with the following message:
Please commit to help Indigenous Nations see groundbreaking legal challenges through, all the way from inception to eventual success: find out more about our Circle of Allies.
The Crowd Versus is honored and proud to work with this powerful organization.
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.
Implications of the landmark Constitutional Court decision for mining affected communities
26 October 2018
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]
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.
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.
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.
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.