Tendele coal mining rights were ‘unlawful and invalid’ – yet judge rules they remain legal

Fikile Ntshangase, an outspoken critic of mining, was assassinated at her home in Ophondweni in October 2020. (Photo: Supplied)

By Tony Carnie

16 Jul 2023

The latest court battle between a major coal mining company and rural residents in KwaZulu-Natal has ended in victory for the miners – but the protracted legal war, uncertainty and community conflict seem set to continue. This is the community where 63-year-old grandmother Fikile Ntshangase, an opponent to Tendele’s mine expansion plans, was gunned down by assassins in 2020.

The Tendele Coal Mining Company was castigated by a Pretoria High Court judge last year for its “egregious” and “offensive” conduct and for behaving like an “unbridled horse”. But now a Pietermaritzburg High Court judge has ruled that the company’s mining rights remain legally in effect, despite a previous judgment that they were invalid and unlawful.

In a 48-page ruling on 13 July, Judge Piet Koen appeared to acknowledge that his judgment could cause irreparable harm to several local residents and members of the Mfolozi Community Environmental Justice Organisation (Mcejo).

However, in his view, he was required to adjudicate narrower questions of law in this case, rather than the conduct of the mining company.

His ruling came after Mcejo members sought an interdict to prevent Tendele from ploughing new access roads, fencing off land and preparing the ground for new open-cast mining in the Emalahleni and Ophondweni areas near the town of Mtubatuba. Until recently, Tendele has been the largest supplier of anthracite coal to the South African ferrochrome industry, selling nearly 600,000 tonnes per year.

Fikile Ntshangase, an outspoken critic of mining, was assassinated at her home in Ophondweni in October 2020. (Photo: Supplied)

Predictably, Tendele has welcomed the ruling and Mcejo has expressed disappointment – but the precise effects of the latest ruling on whether mining can now proceed willy-nilly or indefinitely is likely to be contested further.

Nearly 200 families stand to be evicted from their homesteads and rural farms if the pits are opened – though Tendele argues that most have consented to move or have signed written relocation agreements.

‘Just and equitable remedy’

Last year, Pretoria Judge Noluntu Bam declared unequivocally that several decisions made in favour of Tendele by senior government mining officials and the Minister of Mineral Resources were legally invalid – yet she declined to set some of them aside on the basis that this was a case that called for “pragmatism” and a “just and equitable remedy”.

Quoting the “strong language” of his fellow judge, Koen acknowledged that Bam had found that some of Tendele’s behaviour during the environmental impact process was “nothing short of egregious”.

The attitude displayed by Tendele during the scoping phase of its application process was “offensive” and also portrayed Tendele as an “unbridled horse” that showed little or no regard for the law.

And yet, said Koen, despite his fellow judge finding that the mining rights awarded to Tendele were invalid, she had stopped short of setting them aside – calling instead on Mineral Resources Minister Gwede Mantashe to reconsider his previous decision to reject an administrative appeal from Mcejo.

But, Koen said, this had created potential ambiguity, as Tendele and Mcejo had both interpreted the consequences of her ruling differently.

In the event of any ambiguity in her judgment, Bam was best suited to clarify whether she intended that mining operations could continue in the interim, pending a subsequent appeal to the minister.

Koen said he had invited the two parties to approach Bam to clarify possible ambiguity in her judgment – a step that would have been possible in terms of the Uniform Rules of Court.

“Regrettably, but perhaps unsurprisingly, (Mcejo) and Tendele each advanced their favoured interpretation of what the judgment meant and denied that there was an ambiguity in the judgment. That was unfortunate.”

As a result, Koen had been placed in the position of having to interpret the meaning and effect of another judge’s ruling. In doing so, Koen said he noted that Bam had found “various glaring deficiencies” in the way mining rights had been granted and had ruled they were therefore invalid – and yet Bam still stopped short of setting the decisions aside.

In the final analysis, Bam’s statement that “the decisions are not set aside” could not be ignored, he said, noting that the Constitution did not require invalid administrative acts to be set aside in every case.

For example, setting aside invalid public procurement processes could severely disrupt important public services or impact on public finances.

Averting potential chaos

Citing case law and recent decisions by the Constitutional Court, Judge Koen said mechanisms had been created that allowed courts to avert potential chaos in situations where an administrative act was found to be unlawful and invalid.

“This does not seek to confer legal validity to the unlawful administrative act. Rather, it prevents self-help and guarantees orderly governance and administration. Thus, administrative conduct that has been found to be invalid, as Bam J found in respect of the (Tendele) decisions, may nevertheless be ordered to continue to apply.”

While this approach could give rise to anomalous results, Koen said the Constitutional Court had observed that “the apparent anomaly that an unlawful act can produce legally effective consequences is not one that admits easy and consistently logical solutions. But then the law often is a pragmatic blend of logic and experience”.

The Constitution also provided legal powers to courts to fashion a “just and equitable” remedy in cases where administrative conduct was found to be unlawful.

Because Bam had decided not to set Tendele’s mining rights aside, the effect of her order therefore remained final.

“But might that mean that Tendele could continue mining indefinitely notwithstanding the declaration of invalidity of the decisions, and the omissions which should have been complied with for a valid mining right to be granted?“ Koen pondered.

Mcejo’s legal team had submitted that if the decisions were not set aside, Tendele would be able to continue mining.

“She was therefore alive to that consequence. That notwithstanding, she nevertheless declined to set the invalid decisions aside,” said Koen.

“Plainly (Judge) Bam, because of the public interest in the continuation of the mining operation, wanted the entire process to be regularised, if possible, by an abbreviated process, by providing for the rights transgressed in many instances when the decisions were obtained, being revisited properly during the appeal process.”

It seemed clear that Bam did not envisage that (invalidly granted) mining operations could continue in perpetuity. However, she had not specified an exact deadline for the minister to resolve the appeal – and Koen said he was not willing to go any further in interpreting his fellow judge’s intentions.

Minister holds ‘potential remedy’

But as a potential remedy to this uncertainty and ambiguity, Judge Koen suggested that it was still open to Mcejo and fellow applicants to approach Mineral Resources Minister Gwede Mantashe and request him to suspend Tendele’s mining rights pending the determination of a formal legal appeal to his office.

(It’s worth noting here that Mantashe has been outspoken in his support for coal and fossil fuel extraction. In December 2021, he went as far as describing objections to offshore oil and gas seismic blasting tests as “apartheid and colonialism of a special type, masqueraded as a great interest for environmental protection”.)

Yet, in Koen’s view, Mantashe, “advised by technocrats in his department” was best placed to make an interim decision on whether to suspend Tendele’s rights to mine.

If Mantashe were to dismiss the application, Mcejo could then appeal to the courts for interim relief. The minister would then be required to place his reasons for declining a suspension before the court “meaning that the court would have the benefit of the minister’s reasons for his decision as well as his answering affidavit explaining why, in his judgment, the suspension should not have been granted.”

Reacting to the judgment, Tendele CEO Jan du Preez said the judge had confirmed that Tendele held a mining licence and had therefore not acted unlawfully by sending in a bulldozer and other heavy equipment to begin mine clearance operations nearly two months ago.

“We are still studying the detail; however, this outcome is of great significance to the community who depend on the mine for their livelihoods. During the past 24 months there has been uncertainty and distress due to the retrenchment of about 1,600 individuals. We hope that this verdict will bring an end to the prolonged uncertainty and contribute to economic development in the area as we access the future mining areas, benefiting the community over the next decade.”

But Mcejo, represented by All Rise Attorneys lawyers Kirsten Youens, described the judgment as “very disappointing”.

“Koen’s judgment takes away any justice and remedy that Judge Bam gave to the applicants regarding their right to public participation to inform decision-making … Environmental justice has not been served, and we are consulting with our clients with regard to the best way forward,” they said. DM

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South Africa

‘Just and equitable remedy’

Averting potential chaos

Minister holds ‘potential remedy’