Tendele Mining corrects error in article about activist Fikile Ntshangase

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

By Jan du Preez and Nathi Kunene

4 Nov 2021

Daily Maverick recently published an article ‘Remembering Fikile Ntshangase, a fearless environmental activist’ which commemorated the first anniversary of her death. The article carried a critical factual error that we would like to correct and provide some context.

At the outset, we repeat that despite our differences of opinion, Tendele Mining, its owners — including Somkhele — and its management, also mourn the death of Ntshangase and offer their ongoing support in finding the perpetrators. Tendele has offered a reward for information leading to the arrest and conviction of the perpetrators, and the offer remains open.

Read: ‘Remembering Fikile Ntshangase, a fearless environmental activist’

The factual error in the article was a quote from the UN Special Rapporteur on the Situation of Human Rights Defenders, Mary Lawlor, that she “had written to the South African government and Tendele coal mine but had no response…”.

tendele mine Tendele Coal Mine in Somkhele village in Mutabatuba, KwaZulu- Natal. (Photo: Oupa Nkosi / Mail & Guardian / Wikipedia)

We cannot vouch for the accuracy of the quote in respect of the SA government, but we have written separately to Lawlor requesting her to notify Daily Maverick of the error. We provide here our detailed responses to her queries, dated 8 February 2021.

Lawlor’s office, in response to our inquiry, has stated that: “The response you sent on 8 February 2021 has unfortunately not reached the Special Procedures Mandate Holders due to a technical problem in our system. This is the reason why the Special Rapporteur Mary Lawlor stated in an interview that no response has been received to the allegations to date. We wish to apologise for the confusion caused.”

The Mfolozi Community Environmental Justice Organisation has been the leading applicant and proponent engaged in litigation against Tendele Mining. The protracted litigation has the effect that, whatever the outcome, its resolution threatens to come too late to save the mine as Tendele will be forced to cease production in June 2022 if it is unable to proceed with expansion into new areas over which it was awarded a mining right in 2016 (which is being challenged in the litigation). Expansion will ensure that the mine will continue operating for a further 10 years.

On 10 June 2021, Somkhele Mine management issued a notice in terms of Section 189 of the Labour Relations Act to its representative unions, the NUM, Amcu and Solidarity, that large-scale retrenchments are planned.

Also, Section 52 of the Mineral and Petroleum Resources Development Act requires that a mine must notify the minister if any mining operation is to be scaled down or ceased with the possible effect that 10% or more of the labour force are likely to be retrenched in any 12-month period. On 29 June 2021, Tendele notified the minister that 1,174 employees will lose their jobs due to Tendele’s inability to access its future mining areas.

Consultations have been concluded with organised labour, and an agreement was signed on 27 August 2021 with CCMA facilitation. This will affect 774 employees from August 2021 to June 2022 when the operation will come to a complete stop. This number excludes approximately 400 local Mpukunyoni contractor employees who will also be affected.

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

These jobs will be lost in the poverty-stricken Mtubatuba Municipality, where 72% of households have an income of less than R2,000 per month and alternative employment opportunities are scarce. Additionally, some 70 entrepreneurs will lose their contracts with the mine, and the large bulk of economic development in the area will stop when the mine is forced to close. The mine is the only employer of note in this area of 220,000 people.

Should the mine be able to continue operating in the three future mining areas for an estimated 10 years, some 1,500 jobs will be saved and benefits estimated at R4.7-billion will flow to the community surrounding the mine, in the form of salaries, procurement, social and labour plan initiatives and other economic benefits.

The Mtubatuba Municipality, the traditional council, NUM, Amcu and Solidarity and other leaders representing most of the 220,000 community members are supporting the mine in the litigation as they are concerned about the devastating impact on livelihoods that the closure of the mine will have.

Tendele has made every effort to resolve all the issues out of court; however, these efforts have been rebuffed by the applicants. Tendele has surrendered 92% of the land over which the mining right has been granted and has offered to investigate and reasonably resolve any legitimate community and environmental concerns.

The applicants and their associated entities have repeatedly alleged that the mine is responsible for tensions in the community. This is not so. Tendele acknowledges that tensions exist; however, these tensions are linked to the uncertain future of the mine as 40,000 people from the community directly and indirectly benefit from the operation of the mine.

Indeed, we have worked with the community and all other stakeholders in the area to conclude a peace accord intended to ensure that differences are resolved without violence. The peace accord was signed by leaders representing the community in January 2021. DM/MC

Jan Du Preez is CEO and Nathi Kunene business development manager at Tendele Mining.

Below is a copy of the correspondence between Tendele Mining and the office of UN Special Rapporteur Mary Lawlor as forwarded to Maverick Citizen.

Orsolya Toth <[email protected]>

Fri, Oct 29, 10:15 AM (5 days ago)

to Jan du Preez, Frances Ezeonu, Registry OHCHR, Rodrigo Cortesao, Dragana Korljan, Sagnik Chattopadhyay, Nathi Kunene, OHCHR-Registry

Dear Mr Preez,

As indicated below, we confirm receiving your letter dated 25 October 2021, as well as the attachments thereto. We will contact the Daily Maverick to indicate that Tendele Mine had sent a response to the communication on 8 February 2021, which had not been received by the Special Rapporteur due to technical problems until 25 October 2021.

We will be in touch with you and the company with substantive follow up questions once the Special Rapporteur had fully analysed the replies provided.

Best regards,

Orsolya

***

From: Jan du Preez <[email protected]>

Sent: 29 October 2021 09:52

To: Orsolya Toth <[email protected]>

Cc: Frances Ezeonu <[email protected]>; Registry OHCHR; Rodrigo Cortesao <[email protected]>; Dragana Korljan <[email protected]>; Sagnik Chattopadhyay <[email protected]>; Nathi Kunene <[email protected]>

Subject: Re: UNITED NATIONS and TENDELE MINE

Good morning,

Thank you for reverting.

We have sent various emails in the past to try and confirm that the documentation has been received.

Please confirm that you have now received our letter and please indicate that you will contact the Daily Maverick and indicate to them that the documentation has indeed been forwarded on time in February 2020.

As always, we are happy to work with the United Nations.

The livelihoods of some 220,000 people is at stake, and the leaders representing these people all support the mine's endeavors to try and survive.

Feel free at any time to contact us should you require any information.

Take care

Jan

Sent from my iPhone

***

On 29 Oct 2021, at 09:36, Orsolya Toth <[email protected]> wrote:

Dear Mr du Preez and Mr Ezenou,

Many thanks for your email. My name is Orsolya, and I assist the UN Special Rapporteur on the situation of human rights defenders, Ms Mary Lawlor, in the Office of the High Commissioner for Human Rights. I hereby acknowledge receipt of the response of Tendele Mine to the communication sent on 8 December 2020.

The response you sent on 8 February 2021 has unfortunately not reached the Special Procedures Mandate Holders due to a technical problem in our system. This is the reason why the Special Rapporteur Mary Lawlor stated in an interview that no response has been received to the allegations to date.

We wish to apologize for the confusion caused and look forward to continued cooperation with Tendele Mine on the case of the killing of woman human rights defender Ms. Fikile Ntshangase. We remain at your disposal for any further questions or queries.

Best regards,

Orsolya

Orsolya Toth

Human Rights Officer

Special Procedures Branch

Justice, Protection and Social Rights Unit

Office of the United Nations High Commissioner for Human Rights

E-mail: [email protected]

Tel: +41 22 917 99 13

Web: www.ohchr.org

Twitter: UNHumanRights

Facebook: unitednationshumanrights

Google+: unitednationshumanrights

***

From: Frances Ezeonu <[email protected]>

Sent: 28 October 2021 11:28

To: [email protected]; [email protected]

Cc: [email protected]; [email protected]

Subject: FW: UNITED NATIONS and TENDELE MINE

Good day,

I trust this email finds you well.

Several emails have been sent to Ms Mary Lawlor and Ms Beatriz Balbin with regards to the subject line referenced above by Mr Jan du Preez. Please could you assist in this regard, as there is no response from them both.

We would kindly appreciate an urgent response to receipt of these emails at your earliest convenience.

Pleasant regards,

Frances

***

From: Jan du Preez <[email protected]>

Sent: Thursday, 28 October 2021 10:52

To: '[email protected]'; [email protected]

Cc: Nathi Kunene <[email protected]>; Frances Ezeonu <[email protected]>

Subject: Re: UNITED NATIONS and TENDELE MINE

Good evening

Will appreciate if you confirm receipts of the email.

Good night

Jan

Ps. Frances please urgently follow up

Sent from my iPhone

***

On 25 Oct 2021, at 20:42, Jan du Preez <[email protected]> wrote:

Good evening

Will appreciate if you confirm receipts of the email.

Good night

Jan

***

From: Jan du Preez

Sent: Monday, October 25, 2021 8:27 PM

To: [email protected]; [email protected]

Cc: Nathi Kunene <[email protected]>

Subject: RE: UNITED NATIONS and TENDELE MINE

Ms Mary Lawlor, UN Special Rapporteur on the Situation of Human Rights Defenders

Dear Ms Lawlor,

We at Tendele Coal Mining greet you again following our interactions late last year and in February 2021 when we sent you our detailed responses to the questions you asked us to consider.

We were thus rather surprised to read in an article in the Daily Maverick quoting you as saying that a that you “had written to the South African government and Tendele coal mine but had no response…”.

While we wouldn’t know whether government had responded, this is to remind you that we did so. A copy of the email sent to you with the response document in February is attached here.

We would appreciate it if you could advise the journalist Ms Zukiswa Pikoli of this error in the article.

Thank you.

Please do always feel free to contact us should you require any further information about our operations.

Yours sincerely,

Jan du Preez

***

From: Jan du Preez

Sent: Monday, February 8, 2021 4:22 PM

To: [email protected]; [email protected]

Subject: FW: UNITED NATIONS and TENDELE MINE

Dear Beatriz Balbin

Chief Special Procedures Branch OHCHR

I trust that you are well.

RESPONSE BY TENDELE MINING PROPRIETARY LIMITED (“Tendele”) TO THE JOINT COMMUNICATION RECEIVED FROM THE SPECIAL RAPPORTEURS ON 9 DECEMBER 2020

See attached a self-explanatory response dated 8 February in response to your letter with the following Annexures.

Annexure T1 – Peace Accord (paragraph 1.4);

Annexure T2 – Consent in terms of IPILRA (paragraph 3.1.14);

Annexure T3 – Final version of the road map (paragraph 3.2.3) ;

Annexure T4 – Revised relocation protocol (paragraph 3.3.5);

Annexure T5 – Draft standard template agreement (paragraph 3.3.8); and

Annexure T6 – Summary of the process under the relocation protocol (paragraph 3.3.8).

Please feel free to contact us any time.

Stay safe

Jan du Preez

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