First published at SaveOurWilderness.org, 21 May 2019, here
On Thursday, 16 May 2019, in the early hours of the morning just before dawn, Mr Gideon Mbongeni Gumede breathed his last. His extended illness, involving pain in his lungs and difficulty breathing was undiagnosed and became increasingly debilitating. He had become critically ill over the weekend and was admitted to Hlabisa Hospital where he died after a few days. His death has cast a dark shadow over Somkhele.
Gideon, as he was known in the community, was loved by many. He was a humble man, respectful and soft spoken; not someone who would immediately be recognised as a brave warrior. Yet a warrior he was and he will be remembered as a hero and a role model of how to stand your ground fearlessly, even in the face of life-threatening situations.
Gideon emerged as a man of courage when Tendele mine expanded into KwaQubuka and identified the Gumede homestead within the mining area granted for their operations. Gideon was told to relocate.
There was no opportunity or right to say no and, as is typical, the mine offered minimal compensation to the family for their houses and built infrastructure, not their land. Tendele also provided no alternative land to move to.
Gideon not only rejected the mine’s offer but he also refused to move, even when the mine started its operations within 300 metres of his home. All the buildings on the property are cracked and several have collapsed from the blasting. It became dangerous to continue living there for fear of flyrock and of the houses collapsing on the people living in them, as has happened to other families in Somkhele.
When the rest of the destitute Gumede family moved off their land, Gideon was left on his own to stand up against ongoing pressure to relocate. Several letters were written by Richard Spoor Attorneys, urging the DMR to step in and assist Mr Gumede.
But to no avail. The mine persisted in its quest to move him of his land, even when he became seriously ill only two weeks ago. Yet through it all, Gideon remained resolute. He was not going to allow leave the Gumede land and leave behind what was rightfully and morally due to him. He stayed on his land in spite of the increased stress he was living under, his inability to grow crops and graze cattle to feed his family and his failing health.
It is very sad that Gideon will not live to see or enjoy the benefits of his determination and courage, unlike Gideon in the Bible, a devout man called by God to become a military leader, judge and prophet, and to fight a courageous battle that resulted in an extraordinary victory. Similarly, the battle in Somkhele and other mining affected communities in South Africa will continue fighting after Gideon’s death until we emerge victorious. We are sorry that the wheels of justice turned too slowly for Mr Gumede and his hopes and dreams for the court case will not be seen by him. In some instances the wheels of justice did not turn at all for our dear comrade.
At this time we also remember other comrades and activists like Mr Gednezar Dladla, Dumesile Mwelasi, Scorpion, and “Bazooka” Sikhosiphi Rhadebe who have given their lives to this struggle.
Gideon’s funeral will be held on the 26th May 2019, at KwaQubuka. His death is a great loss to the Somkhele community as whole, as well as to the Global Environmental Trust (GET), the Mfolozi Community Environmental Justice Organisation (MCEJO), Mpukunyoni Community Property Association (MCPA), groundWork and other NGOs who engaged with him over the years. He will be profoundly missed by everyone whose life he touched, including other communities affected by mining.
May he rest in peace at last, free from pain and torment.
On 24 August 2018, placard-waving workers from Tendele Coal Mine in Somkhele, stood outside the Pietermaritzburg High Court protesting against our (Save Our Wilderness organization) application to close the mine for being non-compliant.
On 1 April 2019, eight months later, these same protesters closed the mine themselves!
Who would have thought this possible? Some people considered the reported closure an April Fool’s hoax. Undoubtedly, the mine would have been happy if this had been so, but it is fact not fiction.
The workers closed the mine because of grievances relating to underpayments in their salaries – in some instances, as much as R10,000 a month. Significant differences in salaries being paid to people doing the same job have also created dissatisfaction. These arise from Tendele’s non-compliance with union rates. Negotiations with the CCMA are ongoing to try and resolve the situation.
How ironic that the workers achieved what our High Court application failed abysmally to do. Not only did we lose our case but Judge Seegobin ordered us to pay the mine’s legal costs.
Our High Court case was challenging Tendele for its non-compliance but, in our case, it related mainly to no Environmental Impact Assessment and no waste management licence. These should surely be mandatory, particularly for such a polluting activity right next to the historic Hluhluwe iMfolozi Park, established over 100 years ago as a sanctuary for the last remaining White Rhino on the African continent. The honourable Judge thought otherwise.
Tendele’s History of Non-Compliance
While Heraclitus is right that change is inevitable, Supertramp, a superb English rock band from the 70s wrote a song called “Some Things Never Change”. This would provide a good title for the long litany of non-compliance associated with Tendele since it started its operations in 2007.
For seven years, the mine operated without a valid water use licence. The mine also exhumed and relocated hundreds of graves without necessary permits and reneged on its agreed compensation to families for the exhumation of the remains of their ancestors – a very serious matter in Zulu culture. The mine has taken the property of hundreds of people without compensating them for their land, only for their homes, arguing that they live on tribal land that belongs to the Ingonyama Trust Board. It turns out the mine is wrong, and that people in tribal areas are entitled to be paid out for their land or relocated to a place that is similar to the land they have had to vacate.
In August 2018, the South African Human Rights Commission released its report on mining affected communities, a document that includes numerous human rights abuses perpetrated by Tendele.
Earlier in 2018, ActionAid conducted an audit of Tendele’s Social Labour Plan and discovered glaring discrepancies between what the mine had committed itself to do and what it has actually done. This is likely to result in court action against Tendele. Compensation claims are also in the process of being compiled against the mine. And so, the list of non-compliance goes on….
So who benefits from Tendele?
Clearly the workers are not benefitting as they should, hence the closure of the mine on 1 April 2019.
Somkhele residents are definitely not benefitting, particularly those directly affected by the negative impacts of Tendele mine. The general complaint is that the majority of residents are much worse off now than before Tendele started mining in 2007. This complaint is valid and runs counter to the falsely held belief and narrative that mines uplift and develop communities. This is not true.
So, who are the beneficiaries of Tendele’s millions? There are the usual well-paid CEO and top mine managers, and the shareholders when stock markets are strong, but it appears the main beneficiary is an unidentified entity, referred to in Tendele’s Mining Works Programme as “Royalties-Tribe”. From July 2018 to June 2019, it is tabled that the “Tribe” would be paid over R9-million; the government R3.5 million; and Mine Health and Safety Regulations just over R8-million. For the same period, it was anticipated R35,281 would be paid in rates and taxes. Go figure this out.
Where are we now?
GET/MCEJO Court action
Judge Seegobin’s punitive judgement made in the Pietermaritzburg High Court case against GET, Sabelo Dladla and the Mfolozi Community Environmental Justice Organisation (MCEJO) is on appeal. We are waiting for a date, probably in August, for our appeal to be heard. We are confident we will win, which opens the way for us to take our case to the Supreme Court in Bloemfontein, which we also anticipate winning.
A recent article in the Business Day confirms strong support from the highly respected Centre for Environmental Rights (CER) for our case. They see our application as setting an important precedent for the mining sector to comply with environmental requirements set out in the National Environmental Management Act (NEMA). Currently many mines in South Africa are operating without the necessary authorisations.
Regarding the costs order, CER’s program head for mining, Catherine Horsfield, expressed grave concern that if this judgement is allowed to stand, it could have “a chilling effect” on civil society’s important watchdog role of bringing legal challenges that are in the public interest to the courts thereby defending our constitutional rights and protecting the environment.
MCEJO Court Action
At the same time, MCEJO is calling for a review of the dismissal of its appeal by Minister Gwede Mantashe, who approved the 222 km² mining right granted to Tendele mine in 2016 for 30 years. This matter will be heard in the Pretoria High Court. The date is still to be set.
The mining right incorporates the area north of Tendele’s current mining operations for the full length of HiP, as far north as Centenary gate. The initial application was for 34 km² and the specialist studies also cover this area, which amounts to less than 5% of the total area. The Minister deemed this and the consultation process adequate. Meanwhile none of the affected communities nor Interested and Affected Parties (IAPs) like MCEJO, GET, MACUA, WAMUA, Womin, groundWork, the Wilderness Leadership School, the Wilderness Action Group, WESSA, Wildlands or local tourism operators were informed about this application until GET’s attorney, Kirsten Youens, discovered the mining licence and brought it to everyone’s attention.
Fuleni and Ibutho Coal and Imvukuzane Resources
On 1 May 2014, GET initiated the Save Our iMfolozi Wilderness (SOW) campaign to support the Fuleni community in its opposition to the proposed Ibutho Coal mine. Fuleni is a tribal reserve on the south-eastern boundary of the iMfolozi Wilderness Area, across the Mfolozi river from Somkhele. This area is held sacred by the Zulu people because it was where King Shaka grew up as a boy and incorporates the hunting grounds reserved for the Zulu Kings.
After an intense three-year battle, Ibutho Coal seemed to disappear off the scene. Then, in June 2018, Imvukuzane Resources sent out notice that they had applied to prospect the Fuleni Reserve. This was met with a strong response from the IAPs and the Fuleni residents who are steadfast in their resolve not to allow mining on their land. Nothing further has happened and after several months we discovered that Ibutho Coal is challenging the Department of Mineral Resources for rejecting their application on grounds that they cannot adequately mitigate the impacts their mine would have on the iMfolozi Wilderness area.
Effectively this means Imvukuzane’s application will have to wait until this matter has been resolved. One wonders how the Imvukuzane mine will be able to mitigate its impacts, which are likely to be similar.
Meanwhile a couple of interesting development projects are being initiated by Fuleni residents demonstrating that the people are taking control of their own future. There is a well-managed community goat breeding project that ensures the carrying capacity of allocated land is constantly monitored and not overstepped Linked to this is fincluding a goat meat processing plant being established by a group of enterprising young women from the area.
So positive change is definitely taking place….proving Heraclitus correct. There is nothing permanent except change.
Call to Action:
Do you care about the Hluhluwe-iMfolozi Wilderness and do you want to make a difference?
But wait: we have another way of being that difference. For instance, you can also organize a fun evening and ask your friends and family to donate to your crowdfunding evening; check for more info here.
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.
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.
Mfolozi Community Environmental Justice Organisation (MCEJO) in KwaZulu-Natal, South Africa, requested a proper Public Participation Process (PPP) regarding the proposed Umfolozi bridge and link roads directly affecting the communities of Fuleni and Somkhele. Here you will find the letter they send: : 170329 – MCEJO letter to RHDHV
Reports are that the uMfolozi Bridge is going to receive approval. It is critically important to stop the construction of this bridge which, undoubtedly, will open up Fuleni to mining and, in all likelihood, allow Tendele and Ibutho Coal to become one operation.