- A South African judge has declared a 2016 decision to allow one of the country’s largest coal mines to expand invalid, saying it failed to secure consent from affected communities.
- The country’s minister for mineral resources and energy will now have to review an appeal by some community members against the expansion — jeopardizing the mine’s expansion.
- The mine’s operation has divided the community, with tensions remaining high after houses of local residents who oppose the mine were burnt down earlier this year.
A South African judge has declared invalid the 2016 extension of a mining right to allow Tendele Coal Mining Pty. to expand one of the country’s largest coal operations.
Examining a trail of deficient public consultation procedures stretching back to 2013, Judge Noluntu Bam found that the owners of the Somkhele open-cast mine in KwaZulu-Natal province failed to obtain consent from affected communities as required by South African law.
“The wheels came off during the scoping exercise,” read the judgment, which found that the “attitude displayed by Tendele during the scoping phase of the application process [was] offensive.” Local residents opposed to Tendele had appealed its existing mining right, but the minister of minerals and energy, Gwede Mantashe, rejected that appeal in 2018. He will now have to reconsider it.
Located next to Hluhluwe-iMfolozi Game Reserve, the Somkhele open-pit mine has been operating since 2007. The license to expand the mine by 212 square kilometers (86 square miles) was granted in 2016 and challenged in 2018 by the Mfolozi Community Environmental Justice Organisation (MCEJO), a group formed to oppose mining in the area. The case, however, was only heard in November 2021.
Despite the pollution of water courses, damage to houses, and other negative impacts, many residents have accepted the mine, compensation offered to relocate, and the jobs associated with it. The lingering dispute over its presence has been accompanied by tensions in the communities surrounding it, which peaked with the murder of environmental activist and mine critic Fikile Ntshangase in October 2020.
Earlier this year, two houses belonging to residents opposed to the mine were burnt down by a community member who is now under investigation by the police. It is unclear, however, if the arson was related to the mine, but the destruction of the houses had allegedly been announced by the traditional council, which supports Tendele. Dennis Sibuyi, the lawyer representing the traditional council, distanced his clients from the incident. “My clients do not condone violence in any form in the community,” he told Mongabay via email.
Community members opposed to the mine see the latest judgment as a validation of local residents’ right to public consultation. “We celebrate this as a victory as it shows us that our journey as a community is going forward,” a resident told Mongabay, commenting anonymously as tensions in the communities remain high.
“This judgment is very clear that IPILRA [the Interim Protection of Informal Land Rights ACT] applies and that the wider community must consent to mining if a mining operation is going to affect them,” attorney Kirsten Youens told Mongabay in a phone interview. Her nonprofit law clinic, All Rise, represents MCEJO.
Tendele now faces a lengthy and uncertain process to determine if it will be allowed to go ahead with its plans to mine the additional area.
“The numerous findings of unlawfulness set out in the judgment must be resolved prior to the matter even being put before the minister,” Youens said.
In an email to Mongabay, Tendele’s community manager, Nathi Kunene, said the company will address the faults with its application as laid out by Judge Bam, “including a full Public Participation process according to the regulatory guidelines.”
“The planning remains in place for the future operations to continue as the Mining Right has not been set aside,” Kunene said.
With the minister now set to examine the appeal against the mine afresh, its opponents expect the company and other proponents will try to influence his decision. In October 2021, Tendele CEO Jan du Preez had reached out to Mantashe, pleading for his “assistance to safeguard the future of the Mine.”
Similar attempts to influence the ministry’s decision were allegedly made by the traditional council’s lawyer, Sibuyi, prior to the recent judgment. Leaked emails show that Sibuyi had contacted the office of South Africa’s president and the Department of Mineral Resources and Energy, asking for help to resolve the issue in their favor, copying officials from the mining company.
Defending the emails, Sibuyi said there was nothing untoward about the traditional council approaching government about the issue. “The two offices did send a delegation to meet with my clients’ reps for a fact finding and it was finally agreed that the parties should wait for the court judgment as it is integral on the way-forward.”
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