Fundamentally flawed: Landmark court case falters, one year after murder of anti-mining activist Mam Fikile Ntshangase

Opposing legal teams have characterised the issues variously as “naked corporate greed” trampling human rights and the environment – or alternatively, a case which could bring coal mining operations to a grinding halt and lead to other “catastrophic consequences” in which thousands of people could be put out of work.

The case was called on 6 October before Acting Judge NN Bam, almost a year after 63-year-old grandmother and local anti-mining activist Mam Fikile Ntshangase was murdered by unknown gunmen in her kitchen in Ophondweni, north of Richards Bay, on 22 October 2020.

The case has been brought against Tendele Coal Mining (Pty) Ltd, the Minister of Mineral Resources and Energy and 13 other respondents by members of the Mfolozi Community Environmental Justice Organisation (MCEJO), to review and set aside expanded mining rights in the Somkhele area near Mtubatuba.

Tendele owns the Somkhele anthracite coal mine which opened in 2005. It was granted further mining rights in 2016, which are now being challenged in court.

Ntshangase, who was opposed to expanded mining operations, had allegedly refused to sign a document agreeing to pull out of the Pretoria court case. However, a second prominent anti-mining activist, Sabelo Dladla, subsequently withdrew from the case following community pressure and previous death threats at his home, while a splinter group of MCEJO members has also sought to derail the court case.

Now, Acting Judge Bam has expressed concern about the voluminous court papers (which she said ran to around 8,000 pages) and the fact that the case was set down for only two days.

“There is a lot of paper that the court needs to go through in two days,” she said, before urging the opposing legal teams to narrow down the range of issues in dispute.

Following an adjournment, the court reconvened shortly before 4pm, but Bam said she was still not satisfied that the revised notes submitted by the legal teams addressed her concerns adequately.

Advocate Anna-Marie de Vos, SC, (for MCEJO) has expressed concern over further delays in resolving the matter, given the urgency for both parties.

Recalling the murder of Ntshangase, she said other members of the community were also facing “extreme pressure”, especially families who had refused to move to make way for mining. From the perspective of the mining company, she said, Tendele would also have difficulty obtaining funds to keep the mine afloat in the absence of a final legal resolution.

Outside the court process, it has emerged that Tendele Mining chief Jan du Preez apparently wrote to Mineral Resources and Energy Minister Gwede Mantashe shortly before the case was due to be heard.

As part of the court record, MCEJO attorney Kirsten Youens has filed a transcript of a WhatsApp message allegedly sent by Du Preez to an undisclosed number of recipients, and an email and letter he allegedly sent to Mantashe on 4 October.

In a transcript summarising his letter to the minister, Du Preez is quoted as saying that his intention was to “provide an update and to indicate the grave implications should Tendele be unable to access future mining areas which will result in the closure of the mine during the next few months”.

“Praying” for a successful outcome to the court case, the transcript quotes Du Preez pleading “for your assistance to safeguard the future of the mine.”

It also contains details of the applicants in the court case, their attorneys, funders and supporters.

In a separate email addressed to Mantashe and other department officials sent at 10.43am on 4 October, Tendele chief operations officer Jarmi Steyn provides an executive summary on the status of the mine “and indicates amongst others the following: The (court) review application requesting in affect (stet) the closure of the Mine is starting on Wednesday and Thursday this week (Judge Bam presiding)” and concludes that “we pray for sanity to prevail”.

The letter is signed by Steyn “obo (on behalf of) Jan du Preez, Nathi Kunene and Jarmi Steyn”.

On Wednesday evening, Du Preez confirmed the communication and provided reasons for it: “Section 52 of the MPRDA compels a holder of a mining right to notify the Minister of Minerals Resources and Energy when significant job losses are planned. Tendele Mine is in danger of having to close at the cost of the jobs of more than 1,200 employees and contractors due to its inability to access new mining areas. The on-going litigation relates to the Mining Right that was granted in respect of these new areas. 

“Unfortunately, 102 people were retrenched in August and September 2021 and a further 38 people will be retrenched at the end of the month due to the fact Tendele’s existing coal reserves are running out and one of its processing plants will close in October. By June 2022, all 1,200 employees would have lost their jobs. 

“Tensions within the community are on the rise due to the Mine’s uncertain future and Tendele’s remaining employees and contractors are anxious to know whether they will still have work in the coming months. The litigation must therefore be resolved as a matter of urgency in order to create certainty and reduce tensions. 

“Tendele and the applicants and the Amicus (supporting the Mine and representing the majority of the 220,000 community) will approach the Deputy Chief Justice on an urgent basis as Tendele, its 1,200 employees , its community based employees and the Community need certainty.

“Tendele believes that there is still an opportunity to reach a compromise in this matter in order to prevent job losses and ensure that the interests of all members of this community are protected and considered. Tendele would like to bring peace and stability to the area,” said Du Preez.

Meanwhile, in a letter to Tendele’s attorneys of record (Malan Scholes Incorporated) MCEJO attorney Youens states: “In listing the applicants, their representatives and funders in such a heated letter to the Minister and everyone he sent this to via WhatsApp, your client has effectively put many lives at risk. The letter is highly inflammatory and could very easily incite violence. Further to this, your client is now pleading for government to step into the judicial realm, which government is not entitled to do.”

Back in the formal Pretoria High Court arena, MCEJO advocate De Voss says in her heads of argument that Tendele had brushed aside concerns raised by lawful land occupiers and kept them in the dark over which areas would be mined and who would lose their homes and land.

This had led to a situation where the community was not consulted properly and the exact social and environmental costs were not known, because “naked corporate greed resulted in a wholly premature application, which precluded even the most basic environmental impact assessment”.

“A responsible mining company would have limited its application to those proposed mine sites in respect of which its project design had reached a sufficient level of maturity to allow a proper EIA, or delayed making application for a larger mining area until such time as all the areas could have been properly assessed in the EIA.”

Instead, Tendele brought a premature application to protect its monopoly on coal reserves by seeking to grab mining rights over a vast area of community land (initially 222km2) adjoining the world-famous Hluhluwe-Imfolozi game park and wilderness area.

It would also lead to significant social, economic and environmental costs for displaced communities and those left next to a major open-cast coal mine with 24-hour operations.

Advocate Peter Lazarus, SC, (for Tendele) concedes in his legal papers that the mining company’s public participation process was defective; that the mining right was granted without consulting the national Department of Environmental Affairs and that Tendele did not obtain consent from MCEJO’s members as required under the Interim Protection of Informal Land Rights Act 31 of 1996.

However, Tendele had subsequently decided to abandon the vast majority (92%) of the original mining right area, and now only sought to retain rights over a smaller area of 17.6km2.

“We submit that the only question that remains for determination in this review application is what just and equitable remedy this court should grant,” says Lazarus.

Tendele contends that Acting Judge Bam should remit the matter to the Minister, who should be directed to consider any information which MCEJO and Tendele wished to place before him, along with any comments and submissions from interested and affected parties.

If this did not happen, Tendele claims, it could result in the closure of a 15-year-old mine and about 1,200 people losing their jobs.

Lazarus argued that this would lead to a loss of around R1.5-billion to the national fiscus and mining royalties to the state of R780-million. The supply of anthracite to ferrochrome producers in South Africa would also be significantly reduced.

“We submit that these dire consequences should be avoided if it is possible to do so, while also vindicating MCEJO’s interest in legality.”

But De Vos has countered that the defects in the community consultation and EIA process are so severe that they could not be cured at this late stage by referring them to the Minister or Director-General to review their original decisions.

“When decision-makers fail properly to consider the socio-economic impacts of proposed mining operations and the adequacy of proposed mitigation measures, a highly unequal distribution of the costs and benefits associated with the mining project is likely to result.

“Tendele’s approach fails to acknowledge the limitations upon remittal. While a decision-maker has some leeway to consider new information in a wide appeal, the scope and extent of the new information cannot result in material changes to the initial application.”

The lament that the mine would be forced to “close down” had been presented as justification for the court to fashion an “extra-ordinary” remedy, while the “overstated” claims of job creation by Tendele could not be allowed to serve as an “Open Sesame” to development, where the true environmental cost of the new development was not borne by the mine but passed on to the local community and future generations.

“Tendele raises the spectre of the socio-economic impacts of mine closure in an attempt to hold on to the ill-gotten gains of a fundamentally flawed application process,” says Vos. DM/OBP