Additional Affidavits Filed in Application to Review Tendele Mine in South Africa

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?

Check out her case page on our website, here.

Ms. Kirsten Youens, attorney, and MCEJO representative, Mr. Sabelo Dladla

#lawyerinthepicture #lawapplies2all #coalkills #biodiversity #wildlife #rhino #SouthAfrica #behindthescenes #stopcoalmining #climateaction #humanrights #environmentalrights #law #big5 #nature #iMfolozi #saveouriMfolozi #coalmining

Multi-Award Winning Documentary Highlights the Mining Threat to iMfolozi: Sisters of the Wilderness

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.

Link to SistersOfTheWilderness.com for a short trailer.

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.

Link to SaveOurWilderness.org for additional blogs and information about Dr. Player.

Call to action:

At THE CROWD VERSUS we can also use your help. We crowdfund for the litigation pending to stop the permitting of open cast coal mining, or the expansion of older, already present mines (Tendele).

We have several options to create the level of your involvement. You can donate or become personally involved by writing a blog, taking photographs, or entertaining friends with a dinner at home.

We look forward to seeing your ideas!

Environmental Watchdog Challenges Recent South Africa Ruling

29 March 2019; Published by Tony Carnie

An environmental watchdog has challenged a legal decision by a Pietermaritzburg high court judge, fearing that his ruling will encourage mining companies to disregard the country’s environmental protection laws.

The challenge has been mounted by the Cape Town-based Centre for Environmental Rights, after judge Rishi Seegobin dismissed an application in October to shut down the Somkhele coal mine — owned by Johannesburg-based Tendele Mining — on the periphery of the flagship Hluhluwe-Imfolozi Game Reserve in KwaZulu-Natal.

The centre has lodged an application to intervene as an amicus curiae (friend of the court) in an application for leave to appeal against Seegobin’s ruling.

The centre, represented by attorney Catherine Horsfield, said it was concerned that the ruling “may open the door” to companies disregarding environmental safeguards in the constitution.

The centre believes the Tendele verdict has broad national implications and could have a “profound influence” on the ability of government inspectors to monitor and enforce environmental laws in mining areas.

It could also provide “an excuse” for companies to operate outside the law and to strip legal powers from government enforcement officers.

The ruling may open the door to companies disregarding environmental safeguards …

The centre also said the judge’s punitive costs order against two community-based environmental groups would have a “chilling” legal effect that could cow other vulnerable people from mounting public-interest litigation against powerful mining companies.

In 2018, the Global Environmental Trust, the Mfolozi Community Environmental Justice Organisation and local resident Sabelo Dladla launched an interdict application against mine owners Tendele Mining, arguing that the mine was operating illegally.

Represented by attorney Kirsten Youens, they submitted that the Somkhele mine was operating with no environmental authorisation, no municipal planning approval, no waste disposal licence and no permits to shift ancestral graves.

Dladla also alleged in court papers that several homestead structures were cracking because of daily dynamite blasting at the open-pit coal mine, and several of his livestock had died or disappeared after wandering into mining land that had not been fenced off adequately.

Life had changed forever, said Dladla, with many local residents forced to leave their land and homes to make way for mining. They had lost access to grazing for cattle and other natural resources, and were also worried about the risks to their health from polluted air and water.

The mine painted a different story in court papers, denying that its operations were unlawful and arguing that nearly 1,000 mineworkers would lose their jobs if the mine was forced to close.

Seegobin threw out the application, noting that there had been a number of amendments to mining and environmental laws that took effect in 2014. He said these changes to the law also contained transitional provisions which permitted companies to continue existing operations without obtaining fresh environmental authorisation for listed activities.

If the amended laws did not contain these transitional provisions, said Seegobin, previously lawful mining operations would have been rendered illegal, overnight. “This would have been an unreasonable, insensible and un-businesslike result,” he commented.

Seegobin also suggested that senior officials of the departments of mineral resources and environmental affairs would have intervened against Tendele if they believed the mine was operating unlawfully or causing significant pollution or environmental damage.

Horsfield said the centre recognised that judges had discretion to award cost orders, but the National Environmental Management Act included a clause intended to protect people who sought assistance from the court, provided that they were acting reasonably, in the public interest or in the interests of the environment.

During a landmark public interest case involving the Biowatch Trust and the multinational group Monsanto, the Constitutional Court had reaffirmed the principle of not punishing unsuccessful litigants with crippling legal costs, provided their cases were not “frivolous, vexatious or manifestly inappropriate”.

Horsfield also attacked Seegobin’s assertion that government officials would have taken action against Tendele if they believed the company was contravening environmental obligations. There was no basis to assume that government officials were satisfied with, or had even considered the issues taking place at Somkhele mine.

Seegobin’s approach seemed “tantamount to introducing a standard of deference to functionaries” in the mining and environment departments that was not supported by law.

Responding in court papers, Tendele CEO Jan du Preez said his company did not agree with the legal arguments opposing Seegobin’s main ruling, but would not object to the centre being admitted as a friend of the court — provided it did not try to introduce new evidence.

Du Preez said his company would abandon all claims to the money awarded to it by Seegobin for legal costs.

“I hereby confirm that Tendele unconditionally abandons the costs order granted in its favour by this court…. The issue of the costs order granted in Tendele’s favour need accordingly not feature either in the amicus application, or in the application for leave to appeal,” the company said.

Seegobin has yet to make a ruling on whether he will grant leave to appeal.

This article also appeared in Business DayTimes Select on 28 March, 2019; and in SaveOurWilderness.org on 29 March 2019.

Application Against Tendele Coal Mining (PTY) LTD and Others (Summary)

Posted on December 13, 2018

Application for Leave to appeal filed

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

The 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 30thMarch 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 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

  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

RAVEN Trust Shares Some of Their Major Accomplishments

Posted on December 13, 2018

Tar Sands mining RAVEN Trust

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.

Good news!

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.

Save our iMfolozi Wilderness: Application for Leave to Appeal Filed

Posted on December 13, 2018

Media Release:

Application for Leave to Appeal filed – Global Environmental Trust, MCEJO and S Dladla vs. Tendele Coal Mining (PTY) Ltd.

PIETERMARITZBURG, SOUTH AFRICA

On Tuesday, 11 December, 2018, an Application for Leave to Appeal was filed in the Pietermaritzburg High Court in the case between Tendele Coal Mining (PTY) Ltd and the Global Environmental Trust (GET), the Mfolozi Community Environmental Justice Organisation (MCEJO) and a resident of Somkhele, Sabelo Dladla.

Incomprehensive Judgment

This application is in response to the incomprehensible judgment handed down by the Pietermaritzburg High Court on 20 November, 2018, in which the case was dismissed with costs.

Relevant Documents:

Document: Application for leave to Appeal

Judgement by Justice Seegobin 20 November 2018

Documents for the case heard on 24 August 2018

Notice of Motion

Founding Affidavit

Annexures

Support this case.

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.