- A South African court has ordered one of the country’s largest coal mines to redo an environmental impact assessment for expanding its footprint by nearly 18 square kilometers (7 square miles).
- The court agreed with residents of Somkhele who said that the pre-2016 public participation process to expand the mine — and extend its productive life — was seriously flawed.
- Communities around the mine are deeply divided; the traditional authority and some residents support its extension and the jobs and income this would provide, while others stand firm against the destruction of their homes and way of life.
- The new EIA process is allowing community members to raise a range of concerns about the mine’s social and environmental impacts.
Not far up the hill, after a right turn off the main road that leads from the Zulu town of Mtubatuba in the province of KwaZulu-Natal into one of South Africa’s oldest protected areas, the iMfolozi-Hluhluwe Game Reserve, lives a man who, for security reasons, we’ll call Sinethemba Mhlongo. His property looks like most of the other plots around: trees and a garden surrounding a main house — the iQhugwane, a round hut with a thatched roof that Zulus traditionally connect with their ancestors — and chickens walking freely around the kraal.
Mhlongo, a well-built man in his 60s who’s dressed in a T-shirt and beige pants, can’t say where exactly the demarcation line lies. “The last time they changed it they removed all the households who wouldn’t sign their relocation agreements.”
From behind his house, the view stretches over the village of Emalahleni, which is laid out over a vast area of green hills speckled with huts, houses, grazing cattle and roaming goats. Most of what can be seen, Mhlongo says, falls in what the mining company refers to as the “future mining areas”: three villages selected by the company Tendele for the expansion of the vast open pit coal mine that it’s been operating in the area since 2007.
Leaning over the wooden fence that keeps the chickens out of the garden, he points to a cellphone tower, about 800 meters, or half a mile, away. “That’s about where it starts.”
In 2016, Tendele, a subsidiary of South African company Petmin, was awarded a license to expand into 10 new areas. Even after scaling this expansion back, it planned to begin extending its operations over an additional 17.66 square kilometers (6.82 square miles) no later than June 2022. The open pits would swallow the villages of Emalahleni, Ophondweni and Mahujini.
Tendele ran into determined resistance from Mhlongo and the Mfolozi Community Environmental Justice Organisation (MCEJO), a community group formed in opposition to mining in the area.
The coal in the existing mine, a few kilometers west of Emalahleni, is exhausted. Mine activity has been scaled back to maintenance by a skeleton crew, and all but 23 of 1,600 workers have been laid off, according to Tendele.
New scoping exercise ‘flawed from the beginning’
In 2018, MCEJO challenged the mine’s license to expand, arguing that affected landowners had not been informed or consulted as required by South African law, including the National Environment Management Act (NEMA).
“They have done no communication with the people on the ground. They only speak to the Induna, the tribal authority,” said Mhlongo, who is part of MCEJO.
In May, after years of court proceedings, a judge in the Pretoria High Court recognized fundamental breaches of the process by Tendele, slamming the company for its exclusion of the community, which started with deficiencies in the sending out of notices.
“[The scoping report] had been compiled without consultation with interested and affected parties (l&APs) and without providing proof of the information shared during the consultation, which was clearly in violation of the law,” read the judgment.
While not setting the mining right aside, the judge ordered Tendele to redo the environmental impact assessment (EIA) process from the beginning, starting with the scoping exercise.
Scoping is the compulsory initial phase during which an applicant allows those who will be affected to put forward their views and concerns. The scoping report identifies issues that need to be examined in the EIA and, together with the environmental management program, later serves the minister of mineral resources and energy as a decision-making tool for whether a mining right should be granted.
Tendele started the new scoping exercise not long after the judgment was handed down in May, but this was immediately criticized by All Rise Attorneys, who represents MCEJO in the appeal case.
“This scoping process has been flawed from the beginning,” attorney Janice Tooley told Mongabay. One of the flaws, she said, is that it is shadowed by intimidation.
Tendele’s first environmental assessment practitioner, Christopher Wright, relied on the Mpukunyoni Traditional Authority to distribute notices and organize the public consultation meetings in July. This was rejected by MCEJO’s lawyers due to the high levels of tension within the communities.
“The traditional authority is a respondent to the court case, is publicly anti-MCEJO and has been intimidating our clients,” Tooley said. In a letter addressed to Wright, she wrote that the traditional leadership is not independent or neutral, and that community members don’t feel free to voice concerns out of fear of being reprimanded.
“We have no say. They put you in the corner and you can’t breathe. People are afraid to speak up, because they can do anything,” a member of MCEJO, who asked to remain anonymous, told Mongabay. She and her family were relocated when the mine was first developed in the area, to a place which faces the mine dumps of what’s called Area 1.
Her husband worked for the mine but was retrenched when he fell ill with a lung disease. Criticism of the mine is not tolerated by the traditional leadership, she said.
The MCEJO member also alleged hit lists and threats possibly coming from local contractors and other businesses providing services to Tendele. “The mine told them: those are the people who are finishing your job.”
Mhlongo said he’s received multiple intimidating calls from the traditional authority telling him to avoid certain areas and refrain from talking about the mine. “People are shooting bullets into the air.”
MCEJO and the other applicants in the court case have accused the traditional leadership of siding with the mine and fueling deepening divisions in the communities. Since the murder of local anti-mining activist Mam’ Fikile Ntshangase almost exactly two years ago, the atmosphere has been tense. Ntshangase, a fierce opponent of the expansion of the mine, was shot by unknown gunmen in her house in Ophondweni.
Threats and attacks have become part of life in many mining-affected communities around South Africa. According to the Global Initiative against Transnational Organized Crime, in KwaZulu-Natal alone, more than 50 mining-related killings and attempted killings occurred between 2016 and 2020, often related to land issues and conflicts with the traditional authority.
Responding to a request for an interview, Tendele CEO Jan du Preez said the mine prefers to “refrain from comments” at this stage. “We are under extreme pressure to ensure full legal compliance (and more) [in regard to] the public participation process, and our opponents as you know, are hell-bent to close the mine.”
For the traditional council, Mandla Sibiya, chair of the mining committee, responded to Mongabay’s request for comment in writing, saying: “We have a very strong vested interest in the survival of the mine due to its positive impact in the community.”
Tendele has made commitments to financially compensate members of the traditional council. A document seen by Mongabay and signed by Tendele, the Inkosi (chieftain) and the Ndunankulu, the chief of all izinduna (headmen), in 2017, reveals that “Indunas (headmen) [of] existing mining areas and Ndunankulu will receive a monthly payment which will be outlined in a separate agreement … and Indunas of future mining areas will receive a monthly allowance to be agreed upon until Mining commences.” The Inkosi equally receives a monthly payment, and executive members of the mining committee were promised an allowance of 10,000 rand ($580) per month.
A recent report by the South African civil society organization Mining Affected Communities United in Action (MACUA) found that this is common practice. In an email to Mongabay, Christopher Rutledge, MACUA’s executive director, called it a “systemic collusion between mining companies, traditional leadership and governmental structures at various levels to exclude communities and to ensure that benefits derive to a select few rather than contribute to broad based empowerment of communities.”
Special measures for special circumstances
The role of the traditional authority is one of many issues highlighted in the 30 pages of comments on the draft scoping report that All Rise has submitted. The lawyers have also raised a number of technical deficiencies, such as withholding of information, limiting notification to those residing within a narrowly defined “zone of influence,” unclear maps and fence lines, missing details about job creation, and flaws in the resettlement scheme.
Before that, the law firm had requested the appointment of independent observers to monitor the consultation meetings and called for the implementation of special measures under the EIA guidelines that may be invoked an EIA process generates conflict. As a result, a separate meeting was organized exclusively for MCEJO members. At this consultation, community members raised various concerns, most revolving around Tendele’s old mining areas and the company’s failure to mitigate negative impacts.
“We knew nothing about mining, but we’ve learned through the people. Let the damages be fixed, and then we can talk,” said one member who is not being identified for safety reasons.
Tendele has taken steps to address these concerns. In October, parties to the process were informed that Wright had been replaced by environmental consultancy OMI Solutions. OMI, which had initially been hired to monitor the process, will be supported by another consultancy, WSP, an “independent public participation facilitator.” According to the communiqué, the appointment and the extension of the scoping exercise were in response to the many comments and the complicated nature of the case.
OMI Solutions promised that additional consultations would be held to clarify issues that had not been addressed in the initial meetings.
While an EIA often serves as a predictive tool to identify potential impacts of a project in order to mitigate them, Tooley said in this case the impacts are already well-established. “Tendele said they are going to use the same mitigation measures for the new areas as they’ve used in the existing areas and we’re saying that these impacts are unacceptable because they are grossly deficient.”
Sifiso Sangweni knows the impacts of the open-cast coal mining intimately.
“The trees are dark. The jojo tanks, where we keep the water from the rain, are dark. Everything is dark, even inside the houses. This place is full of coal.”
Sangweni, a tall man who speaks with a deep, clear voice, walks up the hill from his house toward the metal fence that separates his land from the mine’s processing plant. His home is in eMachibini. Many of the village’s households were relocated to make way for Tendele’s Area 2 in 2007.
The 2007 relocation has been criticized for not following best practice. All Rise’s Tooley said Tendele admitted it did not have a proper resettlement program in place. Unlike most other households in close proximity to the mine, Sangweni did not accept Tendele’s compensation offer — in his case 800,000 rand ($44,000) — and remained in his home. But after 16 years of living so close to the mine, he feels defeated. He has complained fruitlessly to the traditional leadership about dust, pollution of rainwater and being cut off from the municipal water supply, cracks in his walls, and noise pollution. Now he says he needs to move. “I can’t live here anymore.”
From the top of the hill behind Sangweni’s house, he looks down at the mine’s processing plant. Black dust whirls up between the machines. Trucks are moving to the soundtrack of the shuffling, rattling and beeping sounds of machinery from mine operations that come close to the fence line. “When they work up here,” he said, pointing to the coal-washing area on his level, a few hundred meters to the left, “all the dirt comes to my house.” In September, the mine started digging a new road right next to his property.
Following this, All Rise asked the South African Department of Mineral Resources and Energy (DMRE) to direct Tendele to stop operations until the case of the Sangweni family is solved. The attorneys are yet to receive an answer.
“The DMRE’s involvement is visibly lacking in the process and a repeat of its dismal performance in the original EIA, to the extent that it appears complicit or at the very least, negligent [in performing its duties],” Tooley said.
Multiple requests for comment sent to the DMRE by Mongabay regarding this issue as well as the current EIA process have remained unanswered.
The new scoping report, which will be followed by a 30-day review period, is expected to be released in the coming weeks.
Alongside completing a new EIA, the judge ordered Tendele to secure formal consent from Somkhele’s land holders to meet requirements of South Africa’s Interim Protection of Informal Land Rights Act. The company asked the traditional council to organise meetings in Emalahleni and Ophondweni to obtain this.
Justice Gumede, a resident of Emalahleni who was at the meeting in that village, told Mongabay that it was well attended and people were free to raise questions about the environment, their cattle and grazing lands and other concerns. “No one was forced into anything. The result was clear, people voted unanimously for the mine. Everybody wants it, that’s a fact.”
He said that only a few people in the community are against the expansion, and that these critics are mostly people who live outside the designated fence line. “They are jealous because they lose out on the compensation payments.”
However MCEJO members from both villages told Mongabay that opponents of the mine did not attend because they were either afraid or not invited. “I am a close neighbour of the mine, but I wasn’t invited. In fact, no MCEJO member was invited, there were only those who like the mine,” said Mhlongo.
At the meetings, the council asked those present to vote for or against the expansion. According to the meetings’ records, 94% of the people present were in favour of the mining operations. “The IPILRA vote is another key hurdle that had to be overcome,” Tendele CEO du Preez told Mongabay. For him, the result showed that the mine and the community’s interest can be aligned.
In the meantime, only a few trucks can be seen carrying coal on the main road out of Somkhele toward the port in Richards Bay. Tendele said it ran out of coal from its existing mine in July, and has retrenched almost its entire workforce. Residents say they were promised new jobs once the mine can continue its operation at the new sites. The future of the mine and its host community is unclear.
“I don’t know if [the company] are going to come,” said Mhlongo, “but I am not sure if they are, because we have raised our voices. We need to hear from the people in the old mining areas what good has been done for them. If it’s good, then we like it. But if there are still people whose house inside out is a problem, then we have a problem.”
Banner image: View from eMachibini village, adjacent to the Tendele coal mine. Image by Victoria Schneider for Mongabay.
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