Summary of Court papers – Global Environmental Trust and Others vs Tendele Coal Mining (Pty) Ltd and Others

By Kirsten Youens

Our court hearing against Tendele Coal Mining (Pty) Ltd and Others is set down for 24 August 2018. Here is a very brief summary of the papers:

 

Our Founding Papers request the Court to grant an interdict preventing Tendele Coal Mining (Pty) Ltd from operating their coal mine at Somkhele until the applicable legislation is complied with. We argue Tendele is mining unlawfully for the following reasons:

 

  1. No Environment Authorisation as contemplated by the National Environmental Management Act or Environment Conservation Act has been issued in respect of any of the mining sites for which Mining Rights have been issued;
  2. Tendele have never obtained municipal permission to conduct mining or to use the land for mining purposes in terms of the relevant local and national planning laws;
  3. No Waste Management Licences have been obtained for any waste generated including the massive stockpiles of waste rock and the production of coal sludge. The liquid coal waste and slurry water produced by coal mining activities is toxic containing mercury, arsenic, beryllium, cadmium, nickel and selenium.
  4. The residents of Somkhele are suffering irreparable harm. Their environment has been polluted by dust and noise and in many cases their homes have been moved or destroyed. The mining activity will, in its ultimate full-blown authority of the whole of Reserve 3 in excess of 222 square kilometres, destroy the environment and the amenity of all who live there and for the public at large.

 

Tendele’s Answering affidavit and our reply:

 

  1. Tendele denies that the applicants are protecting their rights however the applicants rely upon their constitutional rights expressed in Section 24 of the Constitution and embodied in the statutes that are referred to in the founding affidavit.
  2. Tendele admits that it has no environmental authorisation. It contends that it is only required to obtain an Environmental Management Plan in terms of the mining legislation. However, we contend that an Environmental Authorisation has always been necessary. This is a matter of interpretation of the relevant statutes, and not how the regulators are dealing with it.
  3. Tendele states the allegations of harm are “unsubstantiated, speculative and incorrect” and that the economic value of the mine outweighs any harm caused. We state that it is completely impossible to mine for coal in an open cast mine without massive destruction to the environment. The statutory measures that protect the environment are imperative and must be complied with. Acid mine drainage from coal mining poses a severe danger to water resources. The impact of this is impossible to avoid. Mining is harmful to health and our well-being. The mine continues to abstract water from the Mfolozi River for operational purposes. There is an impact on the community who rely upon the River for water and on the World Heritage Site of iSimangaliso downstream. To fob all this environmental harm off as something to be weighed up against the advantages to the economy in mining is not acceptable. One simply needs to visit Somkhele to make it very clear that the impacts of coal mining are irreparable.
  4. It is clear from Tendele’s affidavit that it has not made a land use planning application and received a positive judgment thereon. Instead it simply states that the Municipality supports the mining activities and the relevant legislation provides for the continuation of historical mining. We submit that it does not matter whether the Municipality supports the mining activity or that various councillors or officials are supportive. What matters is the rule of law and whether Tendele has complied with the applicable law in mining the area. We do not accept or admit that the relevant legislation provides for the continuation of historical mining.
  5. It is a legal requirement that waste produced by activities such as open cast coal mining must have a Waste Management Licence. Tendele admits that it does not have such a licence and relies upon the continuation of activities. However, this cannot assist Tendele which has expanded its operations and now has a mining right to expand even further over an area comparatively massive to the original mining area. We contend that such a licence is required on the law and that non-compliance in this respect means that they are operating illegally.
  6. Tendele do not have permission in respect of the heritage legislation and appear to admit that they had previously removed or altered traditional graves without authorisation. Tendele sets out what they have done in the past and admits that it did not appreciate the full extent of the process that it was required to follow. We submit that this is an inexcusable admission, especially as they continue to do so.
  7. Tendele has provided a great deal of information relating to the alleged advantages (economic) of the mining activities but with no substantiation. It is alleged that more than 1000 are employed by the mine. We state positively that no more than 100 local people are employed by the mine and all the managerial posts are filled by white persons. On 16th November 2017 a number of women in the community met with Sean Hayes, a Manager on the mine, and asked for the list of the employees. He refused to give it to them. He told them that there were at least 350 people from the affected community who are employed. This figure is disputed. The community have no knowledge of the alleged 20% stake in Somkhele mine. If this was granted to the “local communities” (as alleged) we would know about it.
  8. The mine alleges numerous positive effects for the community. We completely deny these statements. To the contrary, the mining activities of Tendele have had an extremely negative effect on all present there. The lives of the rural subsistence farmers have been destroyed forever. The beautiful indigenous landscape has gone in the areas where the mining has taken place. There are about 500 hectares (about 25 square kilometres) of devastation as trees, plants, rivers and grassland have been ripped up and covered by rock, huge roads, pits and discard dumps. There is nowhere to graze cattle, no water resources and coal dust in the air and in the water. This is now a dangerous place to live. The air is polluted, the people are suffering from stress and respiratory illnesses.
  9. The issue of water is extremely contentious. Tendele (in paragraph 149) puts this down to the drought conditions and they claim to have supplied JoJo Tanks to the municipality to fill with water. No JoJo tanks have been made available to the people. While Tendele states the many jobs and training were made available – these were only promises made by Tendele and they have not fulfilled them.
  10. The Tendele mining operations fall under the holding company Petmin Limited. Page 32 of the Petmin Integrated Report for 2016 notes the revenue for Tendele as follows :
    1. 2014/15 R1 274 billion
    2. 2015/16 R1 283 billion

With profits of R217 million (2014/15) and R230 million (2015/16) and an increase of 7% in the share price. With these revenues at the community’s expense, the community improvements referred to by Tendele are woefully inadequate.

 

Tendele repeated refers to the BEE Special Purpose vehicle but none of the local people have been invited to participate in it. It should have been easy to put up documents to prove this but so far nothing has been put up. Tendele has been asked for the proof of this by way of Letters of Authority or Trust Deeds but this has not happened.

The import of Tendele’s affidavit is that of a caring mine being attentive to the wishes of the community. Nothing could be further from the truth. The community in the surrounding area to Somkhele have been protesting against the mining activities since 2010. The community feel disempowered by the mining activity and the co-operation of all authority structures with the mining company.

 

Please see the full set of papers here:

Founding Documents

Notice of Motion (pdf)

Founding Affidavit (pdf)

Annexures (pdf)

Tendele answering Affidavit

Answering Affidavit (pdf)

Answering Affidavit Annexures Part 1 (pdf)

Answering Affidavit Annexures Part 2 (pdf)

GET Replying Affidavit

Replying Affidavit (pdf)

 

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