Within hours of the Supreme Court of Appeal handing down judgement on Tuesday, 9 February 2021, in the matter calling for Tendele coal mine to comply with environmental legislation, the legal team acting on instructions from the Global Environmental Trust (GET) were making plans to take the case on appeal to the Constitutional Court.

Kirsten Youens, the Attorney for GET and Mfolozi Community Environmental Justice Organisation (MCEJO) described the majority judgement that dismissed the appeal as “focused on procedure over justice that does not deal with the issues, whereas the dissenting judgement by Shippers is excellent and exactly what we need to take the matter on appeal to the Constitutional Court.”

The appeal will raise the profile of this important case and has a good prospect of a favourable ruling by the highest court in South Africa that will make the judgement binding on lower courts in the country. The case raises an important point of law that requires a legal precedent to bring clarity to legislation where there is currently uncertainty and loopholes that are being exploited, particularly by the mining sector, with serious consequences for the environment.

Advocates Thembeka Ngcukaitobi (See Right2SayNo judgement) and Mawande Mazibuko, who acted for the appellants in the SCA case, consider the matter too important to environmental law jurisprudence for it to be decided purely on procedural law. There appears to be support for this course of action by Judge Shippers whose judgement emphasises protection of the natural environment, as can be seen in this reference of his to the Fuel Retailers case, where the Constitutional Court states:

The role of the courts is especially important in the context of the protection of the environment and giving effect to the principle of sustainable development. The importance of the protection of the environment cannot be gainsaid. Its protection is vital to the enjoyment of the other rights contained in the Bill of Rights; indeed, it is vital to life itself.’

The Supreme Court appeal was brought by the Global Environmental Trust (GET), a not-for-profit organisation established to preserve biodiversity and protect natural resources, and by Mfolozi Community Environmental Justice Organisation (MCEJO), a community-based organisation that supports the implementation of environmentally sustainable projects for communities living along the Mfolozi river in northern KwaZulu-Natal (KZN). The application was supported by thousands of MCEJO members from neighbouring local communities demanding that #LawApplies2All.

The Tendele open cast coal mine is situated on the border of Hluhluwe-iMfolozi Game Park, Africa’s oldest proclaimed nature reserve with the highest density of white rhino in the world. It is the duty and responsibility of the current generation to ensure that the integrity of this priceless heritage is ensured for future generations by upholding the environmental laws of this country that protect biodiversity and natural resources for the benefit of all. One of the ways to do this is to hold coal mines that border the Park accountable and compliant with relevant laws.

Tendele and its supporters focus on jobs that the mine provides but jobs in the mining sector are notoriously precarious, especially in the fossil fuel industry where the trend worldwide is towards renewable energy. For the past three years the mine has regularly sent out notifications threatening that it is about to close in the next few months. The story has been circulated so many times it is difficult to know what is true.

Though tourism has taken a hammering as a result of travel restrictions imposed by the Covid pandemic, tourism, unlike mining, tends to generate sustainable jobs.  The tourism industry is the other major source of employment in Mpukunyoni and surrounding areas given the close proximity to the Hluhluwe iMfolozi Park (HiP). It is considered KZN’s flagship game park with an international reputation that has drawn visitors from all over the world. It can be anticipated that at some point in the future tourism will once again flourish in KZN and benefit the economy of the province and the country. This is if the impacts of mining and other inappropriate developments neighbouring HiP and the iSimangaliso Wetland Park, a World Heritage Site, can be contained. In recent years, many complaints have been lodged by visitors to HiP about the negative impacts from Tendele’s operations, particularly noise, visual pollution, and dust. There are also complaints about having to drive past the mine’s unsightly operations en route to the Park.

Tendele and the Departments of Mineral Resources (DMR), Environmental Affairs DEAEARD) and Water and Sanitation (DWS) pay scant regard to the rehabilitation of the open cast pits that the mine is likely to leave behind when it inevitably stops its operations. Based on current evidence, it is most unlikely that the pits will be properly rehabilitated. Local residents and the South African taxpayers will have to foot the environmental bill of yet another abandoned mine. In 2019, the Department of Mineral Resources estimated there were over 6,000 derelict and abandoned mines.  

For 14 years the neighbouring communities have been bearing the high costs of polluted air, respiratory illnesses, contamination of water, light and noise pollution, cracked homes and outbuildings, theft of grazing land, death of livestock, and loss of biodiversity including wild edible plants and fruits and indigenous medicinal plants. MCEJO members have also been subjected to intimidation, damage to property, violence, and death.

On 22 October 2020, 63-year-old Fikile Ntshangase, deputy chairperson of the Mpukunyoni MCEJO subcommittee, paid with her life when three men entered her home at dusk and shot her six times. Fikile, a social and environmental activist, was an outspoken critic of the illegal and underhanded tactics employed by Tendele mine and by seven subcommittee members who changed sides and joined forces with the mine, betraying their comrades and MCEJO members. Fikile’s voice has not been silenced. Despite the fear in Mpukunyoni of reprisals from the pro-mining lobby, MCEJO members are committed to continuing with the struggle.

Hope is high that the Constitutional Court appeal will make a positive contribution to case law in South Africa and that the battle against Tendele coal mine will produce a valuable legal nugget. In the meantime, the focus will be on ensuring the safety of the courageous MCEJO members who are committed to social and environmental justice and support a just transition from fossil fuels to a low-carbon economy.

“A Just Transition secures the future and livelihoods of workers and their communities in the transition to a low-carbon economy. It is based on social dialogue between workers and their unions, employers, government and communities. A plan for Just Transition provides and guarantees better and decent jobs, social protection, more training opportunities and greater job security for all workers affected by global warming and climate change policies.” – Impilo Ngaphandle Kwamalahle – Life After Coal

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