Communities’ support for Tendele Mine will not be subdued by 'half-truths' and 'dubious research'

Members of the Mfolozi Community Environmental Justice Organisation protest against Tendele’s coal mine operations at Somkhele, KwaZulu-Natal. (Photo: Rob Symons)

By Ntokozo Mkhwanazi, Alex Mkhwanazi, Justice Gumede, Mxolisi Mthethwa, Mandla Ngcobo, T Mlungwana, Bheki Sithole, Ivan Bhengu, Eric Sokhule, Sicelo Shandu, Sipho Mathunjwa, Phiwa Mathunjwa

4 Jan 2024

On November 15, 2023, Daily Maverick published an article about the Tendele Mine titled, “When you drive from Mfolozi to Mtubatuba, you can smell the sadness in the air”, co-authored by Bridget Pitt and Sarah Robyn Pharrell. This is a response from various communities.

Read the original article in Daily Maverick: When you drive from Mfolozi to Mtubatuba, you can smell the sadness in the air

Ordinarily, we do not respond to press reports, however as the livelihoods of thousands of community members remain at stake and as the Tendele Mine is currently on life support and in ICU, we have no choice but to speak up.

The mine belongs to our community, and we have noticed how relentless attacks for the past few years have crippled our mine to the extent that it is now on the verge of “dying”, and in the process saw how our family members lost their jobs, how our entrepreneurs lost their business and how our community has suffered immeasurable damage as the mine cannot assist us with economic development.

We welcome thought-provoking articles from Daily Maverick to stimulate debate on important issues like mining and “Just Transition”. However, context matters, and the Op-ed co-authored by Bridget Pitt and Sarah Robyn Pharrell published in Daily Maverick contains factual and contextual inaccuracies, lacking a balanced perspective as it fails to consider the true facts and the context of our Community.

Notably, the authors did not contact any Community leaders or any of the 1,600 employees who have lost their jobs and failed to mention that all material issues outlined in the article have been dealt with in court, and in every instance, Mfolozi Community Environmental Justice Organisation (“MCEJO”) has lost — thus fatally compromising the objectivity of the reporting.

Community discounted

In our view, the sadness in the community is the direct result of environmentalists purporting to act in the interest of the community, relentlessly trying to close the mine, resulting in some 1,600 community members losing their jobs (of which 87% are local community members), some 70 local entrepreneurs losing their business and the loss of livelihoods of some 20,000 people in our community due to Tendele Mine’s inability to access future mining areas. Furthermore, some 139 families that agreed to be relocated cannot be relocated, due to the inexplicable actions of the environmentalists.

In the article, the reader is not told that MCEJO represents less than 2% of the Mpukunyoni community, a figure put forward by their attorneys, All Rise, that has never been independently verified.

Somkhele protest march in 2016. (Photo: Rob Symons/Flickr)

Furthermore, the authors failed to mention that MCEJO has brought at least six court applications intended to close the Somkhele Mine, and failed six times. Recognising Daily Maverick’s advocacy for believing in the rule of law, we propose a thorough review of the entire litigation on the Tendele court matters, not to publish selected handpicked quotes.

Repeated mention is made of MCEJO as the champion of environmental rights and protector of community interests against the environmental atrocities allegedly committed by the mine. Sadly, the authors did not bother to canvas our views as the representatives of more than 90% of the 220,000 community members and employees of Tendele, on such important issues that affect our livelihood.

Our community is situated within the poor Mtubatuba Municipal area, part of the uMkhanyakude District Municipality, and is grappling with an alarming unemployment rate. About 70% of the population in uMkhanyakude survives on less than R800 per month and over 83% of the total households live below the poverty line. The upper poverty line is R1,417 (in April 2022 prices) per person per month ().

There are 30 izigodi (communities) in our community, headed by 30 headmen (izinduna) who are members of the MTC, which is led by Inkosi, Ntokozo Mkhwanazi and they all support the survival of the Tendele Mine.

The delay in accessing future mining areas due to the court challenges mounted by MCEJO, has dealt a severe blow to the economic struggles faced by our families.

The article portrays Tendele’s mining operation as irresponsible, questioning the support from banks such as Standard Bank and Nedbank, and dramatically fails to indicate the devastating impact that the closure of the mine would have on our community.

The article furthermore overlooks the broader context of “Just Transition” and the positive impact Tendele has had on the Mpukunyoni community since 2006 and the material ongoing impact the mine will have in the community if it manages to continue mining.

Protesters holding MCEJO banner at Somkhele protest march in 2016. (Photo: Rob Symons/Flickr)

Climate change agenda

In refusing to close the mine, Judge Noluntu Nelisa Bam emphasised pragmatism and recognised the mine’s significant contribution to the local economy, and highlighted the challenges faced by our community.

We have been at the forefront of defending the unrelenting unjust and illogical litigation mounted by MCEJO against Tendele. We say “illogical” as our people do not have food and do not have jobs, and this litigation is attempting to keep us in poverty, using foreign funding to further a “climate change agenda” to the detriment of our community.

The overwhelming Community support was evident in the 2022 Community Interim Protection of Informal Land Rights Act (Ipilra) consent voting process, with over 90% of our community voting in favour of the mine in the Ophondweni and Emalahleni area where the future mining area exists. The election process was independently observed by SAPS and WSP.

The authors of the article raise the issues of water and agriculture in the community, but fail to consider the detailed studies conducted by the DWS and the mine, and allowances per the mine’s WUL, which show that the scarcity of water is not as a result of “mining” as less than 1% of water in the area is being used by the mine, the impact of mining on water in the area is negligible and that the soil qualities and population density of the area allow for minimal sustainable farming (2020/2021 Mtubatuba Municipality IDP).

The article furthermore portrays our area as a striving farming community, and sadly we are not, due to poor soil quality. Water is supplied by Tendele contracted local entrepreneurs to some 5,000 community members at great cost to the mine, as these families have no water. The article fails to indicate that the mine has educated some 900 families in hydroponic farming to assist them in producing food.

Failed litigation

In 2017, MCEJO and others approached the Pietermaritzburg high court seeking to interdict Tendele’s mining activities at the Somkhele Mine. That application was dismissed with costs by Judge Rishi Seegobin.

Read more in Daily Maverick: Tendele coal company denies ‘bullyboy’ claims, says it is on verge of liquidation because of court action

Judge Rishi Seegobin held that MCEJO and others had failed to make a proper case for interdictory relief and to demonstrate that Tendele was mining unlawfully. The Judge remarked that “the applicants used a scattergun approach, and failed to hit the target once”.

In 2020, the Supreme Court of Appeal (SCA) heard an appeal against the judgment of Judge Seegobin. The majority of the SCA found that the applicants (MCEJO and others) had failed to plead their case properly and that this ought to have led to the dismissal of the application for leave to appeal. Judge Ashton Schippers, however, dissented from the majority. Even though Judge Schippers disagreed with the majority, he indicated that he would nonetheless have granted just and equitable relief to allow Tendele to continue to mine while it brought itself into compliance with the applicable statutory requirements.

Judge Schippers stated:

“If Tendele’s mining operations are brought to a grinding halt, this would have catastrophic consequences. The mine is the primary driver of economic activity in Mtubatuba. It employs over 1,000 people and 83% of its employees live in the Mpukunyoni area surrounding the mine.”

MCEJO brought an application for leave to appeal the SCA judgment to the Constitutional Court, which the Constitutional Court dismissed for lack of prospects of success.

In the Review Application, MCEJO applied to the court to set aside Tendele’s Mining Right and on 4 May 2022, the Pretoria high court handed down a judgment. In the judgment, Judge Bam called for “pragmatism”. Tendele’s Mining Right and EMPr were not set aside by the court, but the appeal was sent back to the Minister of Mineral Resources and Energy for reconsideration.

Again, the motivation behind Judge Bam’s refusal to set aside the Mining Right and EMPr of Tendele was premised on the economic role being played by Tendele Mine within our community and follows from the pragmatic approach adopted by SCA.

In 2023, Tendele started pre-mining activities in the new mining areas and MCEJO and others brought an interdict application to stop Tendele. Judge Piet Koen in Pietermaritzburg high court, interpreted Judge Bam’s judgement and confirmed that Judge Bam never intended to close the mining operation of Tendele, but that Tendele should be allowed to continue with its mining operations, under the 2016 Mining Right and EMPr, while attending to deficiencies in respect of public participation and Ipilra consent processes. The reasoning of Judge Koen is in line with the SCA approach that it would not make sense to close Tendele mining operation if regard is had to the economic contribution that Tendele makes in the Mpukunyoni Community.

It is completely inaccurate factually and inappropriate legally for the authors of the article to claim Judge Koen discounted Judge Bam’s recommendation and gave the green light to Tendele to continue with the mining operation in the new areas. This is an unfortunate statement by the authors as Judge Koen was only required to interpret the judgment of Judge Bam. The judgment of Judge Bam speaks for itself that Judge Bam never intended to close down the mining operation of Tendele.

MCEJO and its co-applicants brought an application for leave to appeal the judgment of Judge Koen, which Koen subsequently dismissed.

Of the six applications brought by MCEJO and its co-applicants in the high court, SCA and Constitutional Court, all were dismissed.

We say all were dismissed because even Judge Bam who found in favour of MCEJO, refused to grant the main relief sought by MCEJO in the review application, to set aside the Mining Right of Tendele.

As a direct result of the continued litigation being mounted by MCEJO against Tendele, 1,600 employees, the majority of them local Community members, have been retrenched since June 2022 because Tendele cannot access, and start mining in, the new mining areas in time.

Any loss of employment in a Community with 83% of households living below the poverty line, is devastating. One of the comments, in response to the article, captures the sentiment of those retrenched employees: “Maybe the air of hopelessness is because more than 1,600 people lost their job due to the mass retrenchment at the mine.”

The various judgements highlight the economic importance of Tendele to the community. Thus recognising the need for a balanced approach.

The article ignores Tendele’s substantial contributions to the community including salaries, procurement and social and labour plan initiatives, totalling R2.7-billion since 2007, enhancing living standards, alleviating poverty, and providing training to some 12,000 adults and 8,000 children.

Allegations of mental trauma caused by Tendele’s mining operations lack substantiation (no scientific baseline studies were performed). Dr Garret Barnwell’s report is based on a limited and biased sample of MCEJO members selected by All Rise. The article alarmingly fails to mention that all 35 community samples by Dr Barnwell equate to less than 0.02% of the entire community members which distorts the context and facts within the community.

The report was commissioned by All Rise, and it states that “The conclusion reached in this report were informed by my clinical experience…” and emphasises that “statistically, this sample is not representative of the general population in the area”.

Accusations of violence allegedly being committed by the community members supporting Tendele are baseless. No arrests have been made against any of our community members. We have always called for meaningful engagement with MCEJO and we reject a narrative that disregards our input as the majority of community members. In 2021, all community leaders, (including the Municipality and the Traditional Council) signed a Peace Accord, and MCEJO and All Rise were invited to sign the Peace Accord, but refused.

Members of the Mfolozi Community Environmental Justice Organisation protest against Tendele’s coal mine operations at Somkhele, KwaZulu-Natal. (Photo: Rob Symons)

Activists’ funding

The article attacks Standard Bank and Nedbank for providing funding to the mine, but fails to mention that MCEJO through All Rise receives foreign funds to fund the litigation to close the Tendele Mine. These funders are in fact directly destroying our livelihoods by funding MCEJO’s litigation to close Tendele Mine.

Ms Kirsten Youens of All Rise publicly stated that she would like to close the mine, as referenced in an article, dated June 2020: “My clients would like the mine to close, and land that has been destroyed rehabilitated so that trees and indigenous vegetation can grow again, and the water restored to its original levels. If that’s not possible, at the very least we need to stop the mine’s expansion. It cannot ruin any more lives.” Closing the mine at all costs seems to be the only motive for All Rise rather than consideration of the principles of “Just Transition”.

The intersection of climate change and mining operations in impoverished communities is a complex issue that requires careful consideration.

It is noteworthy that Bill Gates, as part of his aim at COPE28, indicated as follows:

“And, more broadly, climate and health go hand in hand. After all, nobody would be better off in a world with fewer emissions but more sickness, hunger, and death.”

Contrary to the misleading statement contained in the article, Tendele does not mine thermal coal, and only mines anthracite that is not sold to Eskom. It’s simply an input into steel due to its low impurities and high carbon content and is a materially “cleaner” coal compared to bituminous coal.

We are deeply frustrated by the actions of those advocating for the mine’s closure. They have yet to provide any tangible benefits to address unemployment and poverty in our community.

Should MCEJO’s actions to close the mine continue, the permanent closure of the Tendele Mine is imminent, and we fear that the mine will then be lost forever and along with it, the hope of our Community.DM

Signed and submitted by the following persons and organisations:

Inkosi Ntokozo Mkhwanazi (on behalf of the Mpukonyoni Traditional Council and Mkhwanazi Royal Family)

Induna Alex Mkhwanazi (on behalf of the Community at Ophondweni )

Induna Justice Gumede (on behalf of the Community at Emalahleni)

Mr Mxolisi Mthethwa, Mayor, Mtubatuba Municipality

Mr Mandla Ngcobo (Chairman of the Directly Affected Community at Ophondweni — families to be relocated)

Mr T Mlungwana (Chairman of the Directly Affected Community at Emalahleni - families to be relocated)

Mr Bheki Sithole, AMCU

Mr Ivan Bhengu, NUM

Mr. Ndabenhle, FALWUSA

Mr Eric Sokhule, Chairman Mtubatuba Business Association (MBA), representing more than 150 local business

Mr Sicelo Shandu, CEO, MBA

Mr Sipho Mathunjwa, Local Mpukonyoni Entrepreneur

Mr Phiwa Mathunjwa, Local Mpukonyoni Entrepreneur

1 Dr Garret Barnwell, 25 October 2022, Psychological Report: Everything for Dust - “The Collective Trauma of Opencast Coal Mining on Residents in Somkhele, KwaZulu-Natal, South Africa”

https://www.youtube.com/watch?v=REeWvTRUpMk

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Our Burning Planet

Read the original article in Daily Maverick: When you drive from Mfolozi to Mtubatuba, you can smell the sadness in the air

Community discounted

Climate change agenda

Failed litigation

Activists’ funding