Tendele Threatens To SLAPP Global Environmental Trust

Published 25 April 2019

Late Monday afternoon, 15 April, Youens Attorneys, who act for the Global Environmental Trust (GET), received a letter from Tendele mine’s attorneys stating that a recent post on our websites and social media pages was defamatory in stating that the South African Human Rights Commission (SAHRC) report on mining affected communities includes “numerous human rights abuses perpetrated by Tendele”.  

The letter from Malan Scholes Attorneys demanded we respond by 10am the next day, Tuesday, with an apology and that we remove from our website, Facebook and social media pages all references to Tendele in connection with being accused of committing human rights abuses in the report by the SAHRC. 

In response, Johan Lorenzen of Richard Spoor Attorneys, who was briefed to act on behalf of GET in this matter, dismissed the accusations of defamation levelled at us by Tendele’s lawyers and threatened to seek punitive costs if Tendele were to sue GET.

Tony Carnie’s article in the Daily Maverick, published this morning, explains that mining companies are increasingly using what has become known as SLAPP suits – Strategic Litigation Against Public Participation – to try to intimidate and silence opponents.  SLAPPS are intended to unsettle and constrain the opposition by taking up time and resources in responding to irksome claims that often have little or no substance. 

In response to the rising number of SLAPPS, several legal NGOs and civil society organisations have formed a coalition to challenge and counter SLAPPs.  

One must surely ask the question why Tendele is featured in research conducted on human rights infringements in the mining industry by the SAHRC?  The report was released in August 2018, just before our Pietermaritzburg High Court application and formed part of the evidence presented to the court. 

In an interesting twist of fate, on Tuesday, 16 April, the date GET was required to apologise and remove all references to Tendele and human rights abuses in the SAHRC report, a US organisation, Human Rights Watch, released its publication about the environment of fear in South Africa’s mining-affected communities, entitled: “We know our lives are in danger”.

The photo on the front is of a group of women activists, who are members of MCEJO, outside the Pietermaritzburg High Court on the day of the Tendele hearing in August. The photo on the back cover is of Tendele’s opencast operations dominating the rural landscape with a Zulu homestead in the foreground. Once again, the people in the community surrounding the Tendele mine, including many MCEJO members, feature strongly in this report.

With  two independent publications on human rights violations in the mining industry citing Tendele in their reports, it will be difficult for Tendele to prove their accusations of defamation. If they do try, GET is ready.

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Link to original article on Save Our Wilderness blog

Update: August 2018 to April 2019 – Status of the Save Our Wilderness campaign

The wise Greek philosopher observed more than 2500 years ago that change is the only thing that is certain. 

Heraclitus

4 April 2019; original blog by Rob Symons published at Save Our Wilderness

Protesting workers close Tendele mine

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.

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Do you care about the Hluhluwe-iMfolozi Wilderness and do you want to make a difference?

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Environmental Watchdog Challenges Recent South Africa Ruling

29 March 2019; Published by Tony Carnie

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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