SUMMARY OF THE APPLICATION AGAINST TENDELE COAL MINING (PTY) LTD AND OTHERS IN THE HIGH COURT OF SOUTH AFRICA, KWAZULU-NATAL, PIETERMARITZBURG. TO BE HEARD 24 AUGUST 2018

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

The Truth about Tendele – Mine throws Lie Line

The truth about Tendele Coal Mining (Pty) Ltd is that it is operating illegally.  The thick application that will be heard on 24 August 2018, at the Pietermaritzburg High Court, documents numerous instances of flagrant disregard of laws and regulations governing the environment in SA.  The parties bringing the application…

Continue reading

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…

Continue reading

Mystery ‘coal moles’ plan to burrow on fence-line of Africa’s oldest wilderness area – Daily Maverick

By Tony Carnie There is a creature known in Zulu as the imvukuzane. It lives underground, has sharp claws and long teeth, but its face is rarely seen. It digs big holes and leaves quite a lot of mess behind on the surface. Daily Maverick picked up the scent of…

Continue reading

New Mining Threat Looms – Zululand Observer

By Tamlyn Jolly Just as the dust had settled on the Fuleni communities’ successful fight against an opencast mine on their doorstep, another mining company has applied for a prospecting licence in the same area. After much protesting and hostility from the Fuleni communities, Ibutho Coal in 2016 gave up…

Continue reading

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. 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…

Continue reading

Imvukuzane Resources threatens the Fuleni Reserve and the iMfolozi wilderness

  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…

Continue reading

Retired Judge David Ntshangase supports Somkhele Community

The Somkhele community, GET and MCEJO are honoured to have the support of retired Judge David Ntshangase. He currently chairs the Marikana panel of experts tasked with investigating the nature of public order policing in South Africa, and the use of weaponry by security forces during protests. He lives in…

Continue reading

Hope for Somkhele, Place of Pain

“On Thursday, 15 February 2018, one hundred and twenty people gathered in Somkhele, near the Hluhluwe iMfolozi Park, to document stories of how their lives have been devastated by Tendele coal mine for the past thirteen years. This brings hope that life in Somkhele is going to change for the…

Continue reading

Fighting destructive mining in South Africa: help MACUA activists raise profile of “right to say No!” campaign

Mining Affected Communities in United Action started this petition to the South African Department of Mineral Resources and 3 others Mining-affected communities are repeatedly denied what is known as the right to free prior and informed consent (FPIC) when it comes to mining developments in their backyard. You can help them fight for a Right to…

Continue reading