Tendele Mining (Pty) Limited conceded last week to a Gauteng High Court Judge that the case brought against it by the Mfolozi Community Environmental Justice Organisation (MCEJO) is valid. By doing so, the mine admits that its 212km2 mining right application was defective and should never have been granted by the Department of Mineral Resources (DMR). This is a huge victory for MCEJO’s 3900 members. No doubt, the late Fikile Ntshangase, who was shot dead in her home on 22 October 2020 for challenging the legality of the mine’s operations would have rejoiced to hear this.
This matter began in 2018, when Youens Attorneys, on behalf of MCEJO, brought an application in the Pretoria High Court to set aside the mining right granted to Tendele Mining (Pty) Limited in 2016 by DMR and the appeal decision made by Minister Gwede Mantashe in the Mine’s favour.
It then took DMR over a year to produce the record of documentation it had considered when granting the mining right. Tendele also failed to file its answering affidavit timeously. The parties concluded their exchange of papers in August 2020 and the matter was set down for hearing on 5 and 6 October 2020 but had to be postponed until 16th and 17th March 2021 and now again, faces yet another postponement.
MCEJO has multiple grounds for asking the courts to review Tendele’s mining right. The documentation Tendele provided to interested and affected parties (IA&Ps) during the EIA process created the false impression that its application was for 32km2 whereas the actual area it intended to mine was for the whole of Areas 4 & 5, a massive 212km2.
During the EIA process, Tendele and its environmental consultants GCS dismally failed to identify and assess all potential impacts and undertake the necessary studies. They also failed to provide IA&Ps a meaningful opportunity to be heard. As a result of this wholly inadequate consultation with the lawful occupiers of the land and other IA&Ps, there was no meaningful stakeholder input in respect of the description of the:
- the anticipated environmental, social or cultural impacts,
- proposed land or development alternatives,
- the appropriate procedure to plan and develop the proposed mining operation.
In the few community meetings held in 2013, Tendele brushed aside concerns raised by lawful occupiers and other stakeholders regarding relocation, claiming that it was premature to identify members of the community who would need to be relocated. The mine also refused to discuss the terms of such relocation (including what would constitute adequate compensation), and to disclose and discuss the proposed areas to which these community members would be relocated.
Tendele knew that the proposed mining operations would involve the relocation of many members of the community and was obligated to engage in meaningful consultations, especially with those community members who would be relocated, with the view of reaching an agreement suitable to all parties. Yet, it failed to identify and disclose which community members and their families would be moved off their land to accommodate the proposed open cast mine pits.
Tendele also failed to adequately identify and assess various environmental, socio-economic, and cultural impacts of its proposed mining activities in the environmental impact assessment (EIA) process. This, in turn, also resulted in non-compliance with the requirements of an Environmental Management Programme (EMPr) under the Mineral, Petroleum Resources Development Act. It was, therefore, impossible for the Regional-Manager and the Minister, given the limited information available to them, to reasonably satisfy themselves against the prescribed criterion that the proposed mining would not result in “unacceptable pollution, ecological degradation or damage to the environment”.
Tendele has said it will be abandoning most of its 212 km2 mining right area, but the threat has not gone away. Despite the mining right being invalid, Tendele wants to proceed with mining the 3 areas of Ophondweni, Emalahleni and Mahujini which it says is necessary for the mine to survive. Tendele wants the court to order that these 3 areas go back to the Minister to reconsider the original appeal, this time with the additional studies Tendele completed belatedly in late 2019 and early 2020. However, in its review papers, MCEJO says these new studies are not only flawed but were undertaken without any public participation and that any consultation as part of a second round of appeal would be insufficient.
“What MCEJO wants is for the whole mining right and the environmental management programme to be set aside and for process to start again, this time making sure everything is done correctly,” said a MCEJO representative who for security reasons wishes to remain anonymous. “The areas of Ophondweni, Emalahleni and Mahujini that the mine is wanting to keep alive through its existing mining right might be considered small – only 5 % of the initial 212km2 – but this is home to almost half of the MCEJO’s current membership. Many of us have lived here with our families for generations. Some families arrived during King Shaka’s rule and have their ancestors buried at their homesteads. It is very painful to be moved off one’s land especially when one knows it is being done illegally.”
MCEJO is not only concerned for the hundreds of people who would have to move to make way for the mining but also the thousands more who would have to live next to a noisy, dusty, blasting opencast coal mine that will pollute their air and water, crack their houses, disturb their peaceful rural setting, and take away valuable agricultural and grazing land as already experienced by those living next to Tendele’s current mining operations.
As for the other 95% of the 212 km2 Tendele intends abandoning, it seemingly still wants to mine at least some of this area and will be applying, if it hasn’t done so already, for a prospecting right, effectively starting the application and EIA process from scratch.
A lot has happened since the application was first lodged in 2018, not only in the legal process but also on the ground. MCEJO members have been constantly threatened, harassed, and intimidated by people employed by the mine, local leaders who support the mine, the Royal House and provincial government officials. Violence has been ongoing. Before the murder of 63 year old Mam Fikile Ntshangase, another grandmother’s home was subjected to a volley of 19 bullets fired by an automatic rifle through her windows in April 2020.
What has complicated matters and made it even more unsafe for MCEJO members, is the actions of a splinter group of 6 suspended MCEJO members who have secretly been negotiating with the mine to withdraw the court case seemingly in exchange for financial gain. They have challenged Youens Attorneys’ mandate to represent MCEJO in a separate but related application which will be heard on Thursday, 18th March. The main application to review the mining right will only be heard once this intervening matter has been decided.
Certainly this is not an easy time for MCEJO. However, Tendele’s recent admission that its mining right was invalidly granted is a major victory and MCEJO will continue to fight on through the courts to safeguard the 3 areas that are still under threat.
Phambili noMCEJO Phambili [Forward MCEJO, Forward].