Coal mining company sends bulldozers into KZN village before impact studies are finalised

A large convoy of heavy earth-moving vehicles has rumbled into the rural village of Emalahleni in northern KwaZulu-Natal, carving away tonnes of soil and vegetation in preparation for new anthracite mining pits.

The fleet of excavators, bulldozers and dumper trucks has been labouring day and night for the past two weeks as the Johannesburg-based Tendele (Petmin) mining group races to lay the groundwork for three new mines in the area — even before the mandatory environmental impact assessment (EIA) and public consultation process have been finalised.

A row of dumper trucks lined up outside the village of eMalahleni. (Photo: Supplied)

Tendele, which acknowledges that it is heavily indebted to banks and shareholders and faces liquidation, has been itching to break ground here for several years — but has been restrained by a series of court actions by the Mfolozi Community Environmental Justice Organisation (Mcejo).

Earth movers flattening a large area of land next to eMalahleni village near Mtubatuba in KwaZulu-Natal, where the Tendele mining company hopes to establish a new open-cast anthracite pit. (Photo: Supplied)

Residents walk past some of the occupied and unoccupied homes near the proposed mine. (Photo: Supplied)

Mcejo’s members fear being removed permanently from their homes and ancestral land or of having to live on the fence line of open-cast coal mines for the next few decades.

As things stand, current mining laws only require the evacuation of people and homes within a 500m radius of mine blasting zones. According to Tendele, more than 90% of affected residents in this rural community have voted freely to abandon their homes and ancestral land — apparently for the greater good of a broader community anxious to retain up to 1,200 jobs as coal miners or as service suppliers.

The Msiziwamakristu primary school at eMalahleni is barely 500m from the edges of the proposed Tendele mining pit. (Photo: Supplied)

Since Tendele began mining in this region in 2007, more than 225 extended families have been “relocated” to make way for its mining pits, with at least 143 more families now in line to be shifted out in the latest mine expansion drive. Full details about financial compensation agreements for these families have not been disclosed by the company.

Stinging judgment

In a stinging judgment two years ago, the Gauteng Division of the High Court in Pretoria Judge Noluntu Bam rebuked Tendele for conducting a defective public participation process in the area, even though a decision to grant mining rights had far-reaching consequences for affected communities.

She said the law required the company to conduct a thorough public consultation and environmental impact assessment process, whereas Tendele’s attempt to sidestep good-faith consultation was a fundamental breach of the law and “nothing short of egregious”.

A draft traffic impact study suggests there could be up to 243 trucks a day (at the rate of 44 coal trucks an hour both ways) passing through the villages of eMalahleni and Ophondweni. (Source: Jinyela draft traffic impact report / Image: Supplied)

“The attitude displayed by Tendele during the scoping phase of its application process is offensive. It portrays Tendele as an ‘unbridled horse’ that showed little or no regard for the law.”

And yet, despite these strong criticisms, Judge Bam stopped short of ordering Tendele to go back to the drawing board to start the approval process afresh.

Taking into account several factors — including Tendele’s role as a major employer in the Somkhele area near Mtubatuba; its financial contribution to the national economy; its annual sales of 600,000 tonnes of anthracite to local ferrochrome producers and its payment of “hundreds of millions of rand in taxes” to the government — the judge declined to set aside the illegally granted mining rights.

Instead, Judge Bam said this was a case that called for “pragmatism” and ordered that the matter be referred back to Mineral Resources and Energy Minister Gwede Mantashe for reconsideration “in line with the findings of this judgment”.

While Tendele and Mcejo both appear to have interpreted aspects of Judge Bam’s judgment as legal victories for themselves, the case returned to the courts last year, when Mcejo sought an urgent interdict to restrain the company from commencing with any “mining and mining-related activities” before the EIA was completed.

The marks on this graphic indicate the proximity of homes, schools and other ‘Blast Sensitive Receptors’ (BSRs) in the immediate vicinity of the proposed eMalahleni anthracite mining pit. (Source: Tendele draft EIA report)

In his July 2023 judgment, Pietermaritzburg High Court Judge Piet Koen commented that he had been placed in the position of having to interpret the meaning and effect of another court’s ruling.

He said it was “unfortunate” that both parties had declined his suggestion to rather approach Judge Bam to clarify any possible ambiguities in her ruling as to whether she intended that mining could continue pending the finalisation of the new process by the minister.

However, as both parties had declined this approach, he was required to adjudicate narrower questions of law in this case, rather than the conduct of the mining company.

The upshot was that Judge Koen ruled that the company’s mining rights remained legally in effect, despite Judge Bam’s judgment that they were invalid and unlawful.

Tendele appears to have interpreted Judge Koen’s judgment as granting explicit permission for mining to commence, even though the judge remarked that no time limits had been set for the revised EIA process to be completed.

He further commented that if Tendele’s interpretation was correct, the new environmental approval process set out by Judge Bam would largely become an “academic exercise”, with mining proceeding indefinitely with no valid mining right and environmental management programme ever having been properly authorised.  

Now, nearly a year after Judge Koen’s judgment, Tendele has sent in the bulldozers and graders.

Confusion and divisions

Tendele’s environmental consultants belatedly published a draft EIA report on 15 May, giving affected parties just 30 days to digest, interrogate and comment on a highly technical report of more than 8,000 pages that has fundamental implications for hundreds of residents of the Emalahleni, Ophondweni and Mahujini settlements.

In a media statement on 23 May, Mcejo said: “Everyone is very much confused about what is really happening. They are asking so many questions but there is no one to answer them.”

Significantly, the mining proposal has also sparked violent divisions within the community, including the murder of senior Mcejo member Fikile Ntshangase who was gunned down at her home in Ophondweni in October 2022 after she refused to leave her home to make way for mining.

Tendele insists that no one will be forced to leave, and that the “majority” of the community favoured mining. Yet documents in Tendele’s new draft EIA report suggest that intimidation continues against residents unwilling to move out.

As recently as last month, a resident laid a complaint with the police after multiple gunshots were allegedly fired above his home and another resident received a telephonic death threat after failing to sign an agreement to “relocate”.

Abandoned homes next to the proposed anthracite mine. (Photo: Supplied)

In the draft EIA documents, Tendele stated that it did not condone any forms of violence or intimidation and “vehemently denies” any implication that it was responsible for any violence in the area.

All Rise attorney Kirsten Youens, representing Mcejo, has written to Tendele’s lawyers requesting a detailed schedule of the company’s proposed construction works over the coming months.

“This construction work makes a complete mockery of the EIA and public participation process,” she said.

Youens complained that since Tendele began construction work in early May, residents had been struggling to sleep.

“The operations are extremely loud and continue almost 24 hours every day, including weekends.”

Fellow All Rise attorney Janice Tooley posed the question: What is the point of public consultation or an EIA if the company starts to build a mine before the legal processes are concluded?

Tooley likened the recent arrival of Tendele’s bulldozers and earth-movers to a process of “constructive eviction”.

“Emalaheleni is just not ‘home’ any more. A lot of people have left already and several people are living in exile … the violence continues, even within families. One elderly lady [recently] found bullet casings outside her home and we think a relative is threatening her [to sign an agreement with Tendele to move out].”

But Tendele has insisted that it is acting within the law.

‘Overwhelming support’ for mining

The company’s lawyers, Malan Scholes, stated in a letter to All Rise attorneys, “As confirmed by Judge Koen in his judgment of 13 July 2023, Tendele is lawfully entitled to mine in accordance with its mining right and existing EMPr.

“Your clients’ understanding that Tendele cannot mine until it completes the EIA process and submits an appeal to the minister, is not supported in law and is incorrect.”

A screenshot of a letter from Tendele’s attorneys, Malan Scholes, to Mcejo’s lawyers. (Screengrab: Supplied)

The Department of Mineral Resources and Energy — the government department responsible for overseeing environmental authorisation for mining ventures — has not responded to Daily Maverick’s requests to clarify its position on Tendele commencing work before the EIA process and ministerial appeal process is concluded.

In response to questions sent to the company on 23 May, Petmin CEO Jan du Preez asked Daily Maverick to hold off publication until after the elections, saying the company had taken legal advice because of the “substantial and sensitive nature of your questions and the potential impact on thousands of people”.

Tendele has indicated that it regards its Relocation Action Plan to be ’sensitive‘ and confidential. (Source Tendele draft EIA report)

“In line with DM’s high standards, we simply want to ensure fairness in the article, especially confirming that we have now won every single court case and have the support of the majority of the community.

“This morning [27 May], we began consulting with the community around the mine, as it is extremely important that our response contextualises our actions, including the notice to start mining and the notice that the draft 2024 EMPr (more than 7,000 pages) has been submitted for public comment.”

But late on 28 May, he provided a formal reply to our questions, for attribution to Tendele business development director Nathi Kunene. See his full response to the questions below.



In response to the questions, the company reiterated its position that the company was permitted to start mining “in parallel to the EIA process and public participation process (PPP).

“Put differently, had the EIA process and PPP needed to be completed before mining, then Judge Bam would have simply suspended both the mining right and EMPr until the minister decided on the EIA and PPP process.”

“In the coming weeks at Emalahleni, relocation [of] households will continue, further equipment will be brought to site, employment of more people will continue to do the construction and clearance of areas where we intend to conduct further mining activities in accordance with our approvals.”

According to the draft EIA report, ‘relocation’ areas have not been finalised yet for all residents affected by the proposed mining operations. (Source Tendele EIA report)

What will happen to families that refuse to leave their homes?

“Tendele will act in accordance with the law and will continue to negotiate in good faith. 

“Since we have advertised the initial positions to start mining, we have received over 5,000 job applications. We have also started engaging with local businesses and have received over 100 company profiles.

“We can see from this overwhelming support and interest that there are many people who are in dire financial straits and are looking for financial opportunities in the area. We want to assure that anyone that has showed an interest to work for or with the mine, that even if they are not successful on their application, they will remain on our database and will be contacted if positions and opportunities arise.”

Tendele’s environmental consultants have said that the public has until 19 June to comment on the draft EIA report. It can be accessed here. DM