On Tuesday, 17 September 2019, at 9h30, Judge Seegobin granted the Global Environmental Trust (GET) and the Mfolozi Community Environmental Justice Organisation (MCEJO) the right to take their matter to the Supreme Court of Appeal in Bloemfontein.
The attendance at the application for leave to appeal in the Pietermaritzburg High Court the previous week on Wednesday, 11 September, indicated that the case is gaining recognition as significant in bringing clarity to an area of law that no court has ruled on yet.
The involvement of the Cape Town-based Centre for Environmental Rights (CER) as amicus (friend of the court), with both Catherine Horsfield and Max du Plessis being present in the court, was valuable in assisting Judge Seegobin with aspects of the case that had been less clear during the initial court appearance a year ago. Having Adv. Tembeka Ngcukaitobi to represent GET & MCEJO, who represented the Amadiba Crisis Committee in their Right2SayNo to the mining of the Xolobeni dunes, also elevated the status of the Tendele case.
The main issue concerns disagreement about the role, before 2014, of the National Environmental Management Act (NEMA) under the then Department of Environmental Affairs, and the Minerals and Petroleum Resources Development Act (MPRDA) under the Department of Mineral Resources.
Ngcukaitobi and du Plessis argued that both pieces of legislation needed to be complied with, which required Tendele mine to have an environmental authorisation based on an environmental impact assessment, required by NEMA, and the Environmental Management Plan required by MPRDA. Tendele’s lawyers argued that the MPRDA trumped NEMA and that, given Tendele had an approved environmental management plan report (EMPr) required by MPRDA, then this was sufficient, and the mine was compliant. If there are reasonable prospects that the Supreme Court of Appeal would come to a different conclusion or if the matter is of sufficient public importance, which raises novel issues worthy of attention of the Supreme Court, then Judge Seegobin was obliged to grant leave to appeal. The cases cited by Ngcukaitobi and du Plessis provided support that another judge would support their view.
Further to the appeal, Ngcukaitobi and du Plessis presented very strong grounds that another judge would likely come to a different decision about awarding costs against civil society organisations, GET and MCEJO, that had brought a matter of public interest to court. Based on the Biowatch ConCourt judgement, as well as several other cases, it became clear that this alone opened the way for the right to appeal to be granted.
Tendele’s legal team and even Judge Seegobin played down the importance of the costs order by saying that the mine had agreed not to pursue this and so, in a sense, the costs order no longer existed. du Plessis was particularly vocal about the judgement being on SAFLII, the legal register of reported cases that judges and magistrates rely on when coming to a decision based on precedent. He argued that it is critically important that this judgement, with its potentially chilling effect on civil society to approach the courts with constitutional matters, has to be contested and overturned.
Kirsten Youens, lead attorney for GET and MCEJO, sees the tide turning for her 4000 clients who make up MCEJO in Somkhele. “It has been a long road. They have suffered since 2007, when Tendele started mining without environmental authorisation or meaningful compensation to land rights holders. Finally, my clients can see that the legal system serves them too and the law applies to all. I and the incredible team of public interest lawyers that support me, will continue to fight together with GET for the rights of MCEJO, the environment and for justice to be done.”
Sabelo Dladla, the second applicant in this matter, was delighted to receive the news of the appeal on the same day he turned 24 years old. “This judgement is the best birthday present I could ask for. Thank you, Kirsten, and our legal team.”
Sabelo, an ecotourism graduate, grew up next to Tendele mine and helplessly watched while his parents lost their wealth after their grazing land was taken away from them by Tendele mine without compensation. At the funeral of his father, the well-known activist, Mr Gednezar Dladla, in 2015, Sabelo made the promise to all those present that he would take over the struggle against Tendele mine in the name of justice for the residents of Somkhele that his father had so valiantly fought. This he has done.