MEDIA RELEASE – Supreme Court of Appeal Application pushes for mining sector compliance

MEDIA RELEASE – FOR IMMEDIATE RELEASE

2 November, 2020

CONTACT: Kirsten Youens, youens@youensattorneys.co.za  Mobile 061 226 6868

Janice Tooley, janicetooley@jtaenvirolaw.com  Mobile 083 650 5691

Supreme Court of Appeal Application pushes for mining sector compliance

On Tuesday, 3 November 2020, the Supreme Court of Appeal, will hear an appeal brought by GET & MCEJO exposing Tendele coal mine’s lack of compliance with environmental laws and the Constitution 

Bloemfontein – Supreme Court of Appeal

The matter brought before the Supreme Court of Appeal, Bloemfontein, on Tuesday, 3 November 2020, challenges Tendele Coal Mining (Pty) for its non-compliance with environmental, planning, waste management, and cultural heritage legislation. The matter will be heard virtually before a full bench of five judges. 

The case has had a protracted journey through the courts, starting on 24 August 2018, when the matter was heard by Judge Rishi Seegobin in the Pietermaritzburg High Court. On 20 October 2018, after several months’ deliberation, Judge Seegobin handed down the incomprehensible judgement, dismissing the case with costs. This judgement could not go unchallenged. 

At the time, attorney Catherine Horsfield, representing the Cape Town-based Centre for Environmental Rights (CER) expressed concern that the ruling, which has broad national implications, “may open the door” to companies disregarding environmental laws and safeguards in the Constitution. She considered the judge’s punitive costs order against two community-based environmental groups as having a “chilling” legal effect that could scare other vulnerable people from instituting public-interest litigation against powerful mining companies. CER therefore applied to join the application for leave to appeal as amicus curiae (friends of the court).

On 11 September 2019, the application for leave to appeal was heard in the Pietermaritzburg High Court, and on 17 September 2018, Judge Seegobin granted leave to appeal his previous year’s ruling in favour of Tendele Coal Mining (Pty).

In essence, the applicants initially approached the High Court in Pietermaritzburg when their attorney, Kirsten Youens of Youens Attorneys, found the mine had no environmental authorisations issued by Department of Environmental Affairs 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.    

Tendele mine is situated 6kms away from the iMfolozi Wilderness Area, part of the historic Hluhluwe iMfolozi Park (HiP) a sanctuary for rhino for 110 years that draws thousands of local and foreign visitors every year. The mine has been operating since 2007 without any environmental authorisations or a waste management licence. Two independent publications, one by the South African Human Rights Commission and the other by Human Rights Watch, cited Tendele as one of the mines disregarding the human rights of mining affected communities in SA, with the Somkhele/ Mpukunyoni residents being one of them. 

Tragically, on 22 October 2020, 63 year old Fikile Ntshangase was gunned down in her home in Ophondweni. She was strongly opposed to the tactics of Tendele coal mine and paid for it with her life. 

The legal team representing GET and MCEJO on Tuesday in the SCA include lead attorney, Kirsten Youens, assisted by Janice Tooley Attorneys, EIA specialists; and advocates Tembeka Ngcukaitobi SC and Mawande Mazibuko,

This important court case marks an opportunity for South Africa’s courts to make it clear to the coal mining sector and the government that they do not support companies that are in breach of the country’s laws. It is also a wake-up call for government to ensure the laws of the land are applied. By approving mining applications that do not comply with legal requirements, the Department of Mineral Resources, the Department of Economic Development, Tourism and Environmental Affairs and the Department of Water and Sanitation are complicit in supporting developments that compromise the environment and the health of the country’s citizens. South Africa has excellent environmental laws and NPOs like GET, working closely with community organisations like MCEJO, are committed to ensuring that mining companies, especially coal mines that are amongst the worst polluters, clean up their acts.

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