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.

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

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.

Media Release 20 August 2018 on Tendele/Somkhele Coal Mining Case

Media Release – on 20 August 2018

Tendele/Somkhele Coal Mining Case

Notice: The Somkhele and Fuleni communities neighbouring the Hluluwe iMfolozi Park unite on 24th August 2018 at the Pietermaritzburg High Court in their resistance against the ongoing illegal mining by Tendele Coal Mining (PTY) LTD and its proposed expansion.

PIETERMARITZBURG, SOUTH AFRICA: In an application to be heard in the high court in Pietermaritzburg, evidence will be tabled before Judge Seegobin of how, since 2017, the mine has been violating the National Environmental Management Act by breaching environmental and other laws. The mining company operates illegally next to arguably the most sensitive area in South Africa, with the largest population of rhinos in the world.

Tendele’s human rights abuses and negative impacts on the lives and livelihoods of the greater Mpukunyoni area, where Somkhele is situated, will be tabled in various reports, including the South African Human Rights Commission’s recently released report on hearings with mining affected communities that include Somkhele.  Meanwhile, Tendele plans to expand its operation and has identified 124 households to be moved from their rightful land. Many more families will lose their livelihoods and have their lives and health destroyed by living in close proximity to the mine.

“Furthermore, environmental degradation, and the failure to conserve biodiversity, prejudice the realisation of numerous other human rights, particularly the right to equality, but also the rights of access to sufficient food and water, health, housing, land and ultimately, the right to live with dignity.”  [Extract from SAHRC report, p.41]

The application is brought forward by The Global Environment Trust (GET) and members of Mfolozi Community Environmental Justice Organization (MCEJO) who believe #LawApplies2All.  The applicants seek that the court interdicts and restrains Tendele Mining company from carrying on any mining operation in the area until it has complied with the law.

Kirsten Youens, attorney for the applicants sums it up by saying: “We are relying on our judicial system to ensure that justice is done. The law must be complied with by all, not a select few. This is an opportunity for a clear statement to be made that it is unacceptable for mining companies to comply with the law after they have already commenced mining and only when ordered to do so. The environment and thousands of people’s lives are at stake.”

ENDS

For the latest on this case see the following links:

The Truth about Tendele – Mine throws Lie Line: https://wp.me/p768Un-HN

Summary of the Court case with links to court papers: https://wp.me/p768Un-HV

For background on Save our iMfolozi Wilderness Campaign: https://saveourwilderness.org

Photo album on Tendele mine: https://adobe.ly/2MrWrmz

Case Details:

Applicants: 1.Molozi Community Environmental Justice Organization (MCEJO)

                    2. Global Environmental Trust (GET)

                    3. Sabelo Dladla

Main Respondent (See Court Application for 8 others, none of which will address the court):

  1. Tendele Coal Mining (Pty) Ltd

 

Place: Pietermaritzburg High Court (Pietermaritzburg CBD)

Date: 9h30 sharp on 24 August 2018

Contacts:

Kirsten Youens, Legal advisor for GET and MCEJO – 0612266868

Sabelo Dladla, MCEJO, Second Applicant –  0834647671

Sheila Berry, Spokesperson for the Global Environmental Trust – 082 295 7328

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

Our 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 30th March 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 26th October 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 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

 

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.

Coal mining threatens KwaZulu; Natal’s oldest nature reserves

Coal mining threatens KwaZulu; Natal’s oldest nature reserves.

 

Update with new information (July 12): “Tendele’s mining right that was under appeal was granted in 2016 (not 2017) after an extended consultation process which included the park. This mining right is in the Mpukunyoni area and not Fuleni. It was appealed as people thought it was in the buffer zone, and that we didn’t consult and didn’t follow necessary environmental legislation – which the Minister then rejected, confirming that we acted 100% within the legislation and could prove consultation was done. Important to note: we have no relation to Fuleni or Imvukuzane; their reserve runs on the other side of the iMmfolozi River,” says Tendele COO, Jarmi Steyn.

KwaZulu Natal’s oldest game reserve, the Hluhluwe-iMfolozi Park (HIP), along with its neighbour, the Fuleni Reserve, may come under threat by yet another coal mining prospector tendering for mining rights on its borders.

For the second time in four years, the reserves, their habitant wildlife and fragile ecosystem, as well as the surrounding communities, are potentially being threatened by mining companies tendering to establish open-cast coal mines in their midst. The historic wilderness zone, now covering nearly a third of the HIP, is home to some of the densest populations of White rhino in the world – an endangered species. This zone was given special protection because it was largely unscarred by development.

Tendele Coal Mining has been operating in the area for 11 years, with approved mining rights for current and future areas, says Chief Operating Officer, Jarmi Steyn. “Tendele abides by the required legislation and its regulations as prescribed, and has extensive monitoring and management programmes in place to minimise pollution and damage to the environment as prescribed. It is important to note that the HIP is an interested and affected party of the mine, and was consulted with all mining rights applications. It’s also worthy to note that all the mine’s active areas are outside of the 5km buffer zone of the park.

Important to note- we have no relation to Fuleni or Imvukuzane – their reserve runs on the other side of the umfolozi river.

Ibutho Coal applied for mining rights in Fuleni four years ago, but it is alleged that the project was abandoned following strong opposition from Ezemvelo KZN Wildlife and the local community. An environmental impact report on the Ibutho project suggested that hundreds of people would have to abandon their homes, businesses, farming plots and ancestral graveyards; while the direct impact of blasting vibration, dust, noise and lighting would be felt 24 hours a day, seven days a week for over 30 years.

Limpopo-based environmental consulting firm Jacana Environmentals, suggested that the noise from up to 200 coal trucks a day would radiate to distances of around 1.5km during the day and 3.5km at night. This noise would affect the tranquillity of the nearby HIP. Furthermore, it was estimated that Ibutho would require 105m litres of water a month – despite the iMfolozi River already being considered ‘water stressed’. Surface and groundwater in the vicinity of the mine would be poisoned from acidic mine drainage and other contaminants, while underground mining would cause the ground to subside.

On May 22 this year, Imvukuzane Resources applied to South Africa’s Department of Mineral Resources (DMR) for environmental approval to prospect for coal and other minerals, and to dig 275 test boreholes in the Fuleni area, directly adjacent to the southern boundary of the HIP. This has the potential to affect 16 500 inhabitants in the local communities, and have serious environmental impacts through “noise, blasting, coal dust, water extraction and pollution, light pollutions, contamination of soil, destruction of agricultural and grazing land, displacement of thousands of people,” says Save Our Wilderness.

 

 

Tourism Update approached the Department of Mineral Resources to query the considerations put in place with regard to the above effects on the environment, wildlife ecosystem, their consequent tourism, and on the local communities. The Department’s spokesperson, Ayanda Shezi, said: “The law requires that when an application for mining or prospecting is being considered, a thorough assessment of environmental impact be undertaken to establish if the proposed activities will have an impact, and the severity of that impact.”

The process of engagements with all stakeholders is prescribed in terms of Chapter 5 of the National Environmental Management Act 107 of 1998, read with the Environmental Impact Assessment Regulations, 2014 EIA Regulations, and undertaken by an Environmental Assessment Practitioner who upon finalisation of that process – including the associated consultation with all Interested and affected parties, submits the EIA to the Minister for consideration.

In the event that a mining right is granted, there is a further process in terms of section 5 of the Mineral and Petroleum Resources Development Act (MPRDA) that requires the mining right holder to consult with the landowners and lawful occupiers. The mine owner must still comply with all the laws of the land and best practices regarding the management of relocations.

The impact in this instance (tourism to the reserves) gets to be analysed during the EIA process as determined in the EIA regulations.”

On August 31 2017, Tendele applied for mining rights to 222sqkm within the Fuleni Reserve, which was appealed by Save Our Wilderness. On June 19 this year the appeal was rejected by the Minister of Mineral Resources, Gwede Mantashe, on the following grounds:

  • The application was rightfully adjudicated in terms of the now repealed section 39 of the MRPDA, read with regulations 49.50 and 51.
  • The amendments in both MRPDA and NEMA do not apply retrospectively, and the acting DG rightfully considered the provisions in the unamended MPRDA.
  • The regional manager has confirmed consultation with interested and affected parties.”

 

Steyn says that in general, Tendele “tries to communicate with such bodies in order to provide information and detail. In many instances it is found that environmental complaints and resistance relates back to employment opportunities and unsubstantiated compensation related issues. It must be noted that the area in which the mine operates has a very high unemployment rate and poverty is rife – any propaganda sees opportunity for alleviation of these challenges. Tendele has furthermore created a structure called the Mpukunyoni Community Mining Forum (MCMF), where all leaders and community representatives are present – municipality, traditional council, community committees and the like. NGOs are welcomed to the meetings of the MCMF, but to date, none have been willing to accept our invitations. Tendele furthermore has an interested and affected parties database whereby such parties are informed of the Mine’s doings/plans and comments and suggestions are noted and actioned.”

While the appeal against Tendele’s application was rejected, a number of conservation and local-community bodies have raised a powerful call for support to stop Imvukuzane Resources’ application. “The more people who register as Interested and Affected Parties (IAPs), the stronger and clearer the message to the Department of Mineral Resources that coal mines in rural farming communities that threaten HIP are not to be considered. Neighbouring communities derive far more jobs and sustainable benefits from the park and tourism than from coal mines that leave serious environmental, social and economic devastation behind and invariably do not rehabilitate the area despite legal obligations to do so,” says Save our Wilderness.

Imvukuzane Resources, however, remains a ghost to media enquiries. An investigation conducted by the Daily Mavericksuggested that Imvukuzane was only set up in April, and currently has a single director (a 33-year-old Pretoria attorney), and no attempt to obtain comment from the company, its employees, or any linked parties was achieved. Tourism Update’s own investigations and attempts to make contact with the mine were unsuccessful.

Imvukuzane’s application is still under consideration, says Shezi, “and no final decision has been taken”. “The Department takes very seriously the impact any proposed mining activity has on the environment. Its processes are bound by the principles of Integrated Environmental Management and Chapter 5 of NEMA, and as such, all decisions made take into due consideration all the environmental and socio-economic factors,” she concludes.

11 Jul 2018 – by Kerry Hayes

Link to article here

Appeal against Granting of Mining Right to Tendele Coal Is Rejected by DMR

Appeal against granting of 222 km2 mining right to Tendele Coal mine rejected by DMR

Our ​appeal​ against the issuing of a 222 square km mining right (Area 4 and 5 on the map) has been rejected by the Minister of Mineral Resources of the Department of Mineral Resources (DMR).

On 31 August 2017 the Mfolozi Community Environmental Justice Organisation ​(MCEJO) ​and Mr Sabelo Dladla (the late Mr Gednezar Dladla’s son) submitted an ​internal appeal​ to the Director-General of Mineral Resources against a decision made by the Regional Manager, KZN, to grant a mining license to Tendele Coal Mining at Somkhele for a new mining area in excess of 222km.

The grounds of the appeal were that the expansion of this open cast coal mine on the border of the Hluhluwe-iMfolozi Park will result in unacceptable pollution, ecological degradation or damage to the environment; that no environmental authorisations have been issued for any part of the 21 233.0525 hectare mining right area; that there has been no consultation with interested and affected parties; and that there is non-compliance with the KwaZulu-Natal Heritage Act and National Heritage Resources Act. The documents that formed part of the application process requested a mining right for an area of approximately 32 kmand yet an area of 222 kmwas issued.

The applicants had also requested that the mining right be suspended pending the outcome of the appeal.

On the 19 June 2018 notice was received that the appeal had been rejected by the Minister of  Mineral Resources on the following grounds:

  • “The application was rightfully adjudicated in terms of the now repealed section 39 of the MRPDA, read with regulations 49.50 and 51.”
  • “The amendments in both MRPDA and NEMA do not apply retrospectively and the acting DG rightfully considered the provisions in the unamended MPRDA.”
  • “The regional manager has confirmed consultation with interested and affected parties.”

Documents

 

Notice Of Appeal Against The Granting Of Mining Right KZN 30/5/1/2/2/1004MR To Tendele Coal Mining Pty (Ltd) . pdf

 

Letter to DG re mining in KwaqubukaNorth 8 March 2018.pdf

 

Letter from Minister dismissing appeal.pdf

 

Imvukuzane Resources Threatens Fuleni Reserve and iMfolozi Wilderness

Imvukuzane Resources threatens the Fuleni Reserve and the iMfolozi wilderness

Tendele Mine – Somkhele

 

URGENT APPEAL – REGISTER NOW AS AN INTERESTED AND AFFECTED PARTY (IAP)

WE NEED YOUR HELP TO STOP A DEVASTATING NEW COAL MINE ON THE BORDER OF THE HLUHLUWE-IMFOLOZI PARK

Background

For the second time in four years, the Fuleni community, home of the Mthethwa people for centuries, is being subjected to the stress of the threat of what is likely to be another massive, polluting open cast coal mine, like Tendele, in the middle of their villages.The proposed area for prospecting includes the entire Fuleni reserve, a large area almost the size of the iMfolozi wilderness area.

It will affect an estimated 16 500 people who, in 2016, finally made it clear they will not move off their land.

Fuleni residents protest against Ibutho Coal – 2016

Yet, another new, unknown mining company, Imvukuzane Resources, has applied for a prospecting licence.  The community strongly oppose the application together with the Global Environmental Trust(GET) and Ezemvelo KZN Wildlife. We also need you to say NO!

The mine is on the boundary of the historic Hluhluwe-iMfolozi Park (HiP) the oldest protected area in Africa, set aside in 1895, more than 110 years ago as a sanctuary for the Southern White rhino, thought to be extinct at that time. It is the home of these iconic animals being poached to extinction for their valuable horns. The iMfolozi Wilderness area was established in 1958, and is recognised as the first Wilderness designated in Africa. Many thousands of people from all walks of life, races and creeds have gone on Wilderness trails in this place held sacred by the Zulu people.

There will be many serious environmental impacts, particularly noise 24/7, blasting, coal dust, water extraction and pollution, light pollutions, contamination of soil, destruction of agricultural and grazing land, displacement of thousands of people, etc.

The full Background Information Document (BID) can be downloaded below:

Groundmined I&AP Letter Fuleni Reserve .pdf

REGISTER AS AN IAP – COMPLETE THE FORM TODAY – DEADLINE 22 JUNE.

EMAIL T0 christine.f@greenmined.co.za

Form can be downloaded below:

AP Registration & Comments – Fuleni Reserve.docx

The more people who register as IAPs, the stronger and clearer the message to the Department of Mineral Resources that coal mines is rural farming communities that threaten HiP are not to be considered. Neighbouring communities derive far more jobs and sustainable benefits from the Park and tourism than from coal mines that leave serious environmental, social and economic devastation behind and invariably do not rehabilitate the area despite legal obligations to do so.

GUIDELINES FOR COMPLETING THE FORM

  1. Contact details section. Ensure you complete the Interest section

Egs. I have contributed to anti-rhino poaching and am aware of the link between mines on the boundaries of protected areas and increasd poaching.

OR

I have been on a wilderness trail and believe other people should have the opportunity and right to this experience that would be ruined by another mine in close proximity to the wilderness area.

AND/OR

I recently went on a wilderness trail and was shocked by the impact that the current Tendele coal mine had in the wilderness area, day and night.  The noise and light pollution at night was so invasive. It distracted from the experience. Another mine to the south of the wilderness area would destroy it completely.

OR

I live in the vicinity of the Park

OR

Protected Areas belong to all South Africans and as a concerned citizen I have an interest in HiP

  1. Comments/Opmerkings Section

No Comment:-

Numerous comments OR Many comments OR Several comments. Or the exact number of comments.

Request additional information:

Proof of the procedure followed this far, particularly in terms of negotiating with the Fuleni traditional leadership and the community prior to engaging with the Ingonyama Trust Board and applying to the Department of Mineral Resource for permission to prospect in the area.

Precise location of where notices were posted to inform IAPs of the Prospecting application.

Who was the BID was circulated to and how.

Languages in which the notice was prepared.

Languages in which the table for comments was prepared.

To avoid wasting IAPs time and money, provide a comprehensive desktop study that details all the issues and impacts raised in 2014 by IAPs as well as specialist studies for the Ibutho Coal project.

Provide evidence of substantive new information or changes in the situation since 2014 to 2016.

Concerns:

The Prospecting application focusses only on determining the existence of minerals in the area and pays no attention to the numerous Fuleni residents and members of the public who, since 2014, have made it clear through legal, peaceful channels that mining in NOT wanted. Who is responsible and accountable should understandable violence erupt?

Increased rhino poaching with strangers coming into the area during prospecting and subsequent mining

The impacts and damage to the Wilderness Area, the wildlife and the Park as a whole should mining be approved.

A reduction in the popularity and number of tourists visiting HiP as a result of the intrusion of mining so close to the Park.