29 April 2021
[See below for Contacts.]
MINING RIGHT FACES GROWING OPPOSITION
The Gauteng High Court has accepted the intervention of four new applicants in the review of Tendele coal mine’s contested 212km2 mining right issued in 2016 by the Department of Mineral Resources (DMR).
Pretoria, Gauteng –
Judgment was received on Wednesday, 28 April 2021, concerning two interlocutory matters heard in the Gauteng High Court by Judge Kubushi on 18 March 2021. Both pertain to the main review application brought by the Mfolozi Community Environmental Justice Organisation (MCEJO) in June 2018 challenging the 212 km2 mining right granted by the Department of Mineral Resources. The first case heard on 28 April was an application to allow the intervention and joining of four new applicants in the review application (the “intervention application”). The judge found in the applicants’ favour. The second, was a challenge brought by 6 suspended MCEJO members claiming to represent the whole organisation to have Tendele’s 212km2 mining right review application withdrawn and Youens Attorneys’ mandate terminated (“the withdrawal application”). The judge disagreed and dismissed their case, affirming Youens as MCEJO’s attorneys.
The upshot of the recent judgment is that MCEJO has gained the support of four new applicants, namely the Global Environmental Trust (GET), Mining Affected Communities United in Action (MACUA), the Southern Africa Human Rights Defenders Network (SAHRDN) and ActionAid South Africa in the all-important review application. All four NGOs have had long associations with the Somkhele residents and members of MCEJO who have been fighting for environmental and social justice ever since Tendele’s opencast coal mine became operational in 2007. They are represented by ALL RISE, Attorneys for Climate and Environmental Justice – a newly registered non-profit law clinic.
The review application was originally set down for hearing for two days on 18 and 19 March 2021. But before it could be heard, two interlocutory applications were filed, namely a Rule 7 Application filed by Tendele Mine questioning the authority of Youens Attorneys to act on behalf of MCEJO in the review application; and the withdrawal application filed by the MCEJO splinter group. During a case management meeting with Judge Kubushi on 10 March, Tendele abandoned and/or withdrew their Rule 7 application and conceded the merits of the review application. However, the Judge at the same meeting, ruled that the withdrawal application needed to be heard before the review application causing the latter to be postponed.
The questioning of Youens Attorneys’ mandate and attempt to withdraw the review application is considered a form of SLAPP, a strategic lawsuit against public participation to drain resources and draw attention away from the main issue. The Judge noted: “Of importance is that there are other communities… who stand to be prejudiced should the pending withdrawal application be allowed and the application for intervention not be granted.” [see para 24 of judgment]. MCEJO members are ecstatic at the news of their victory and validation of their attorney.
Simphiwe Sidu’s comment on the inclusion of SAHRDN as an applicant to the review is: “This case reminds us that all too often the fight led by environmental defenders in protecting their identity and ancestral land is the greatest struggle of our time. As the SAHRDN, we will always remain committed to making their cause our own.”
Sifiso Dladla of ActionAid states that the inclusion of ActionAid, a global federation, confirms that this case is not only about Somkhele, as reported the traditional leaders and Tendele mine report, but an international matter. Dladla went on to say: “As part of a global movement working with communities living in a state of poverty not of their own making, ActionAid stands by the community of Somkhele and with other communities facing similar challenges. For years we have been aware of collusion between the mine, traditional leaders and incompetent authorities that cannot be trusted to implement the law and their mandate.”
Despite conceding the invalidity and unlawfulness of its mining right [see para 6 and 13 of judgment] and having abandoned the majority of it, Tendele is still pursuing the mining of the three areas of Ophondweni, Emalahleni and Mahujini, which therefore remain subject to the review application. As a MCEJO representative, who for security reasons wishes to remain anonymous observes: “The remaining areas might be considered small – only 8 % of the original 212km2 mining right area – but they are home to almost half of the MCEJO’s current membership. Many of us have lived here with our families for generations. Some families arrived during King Shaka’s rule and have their ancestors buried at their homesteads. It is very painful to be moved off one’s land especially when one knows it is being done illegally.” It is not only those who will need to be relocated to make way for mining in these areas who will suffer but thousands more who will be forced to live right next to an open cast coal mine with no compensation.
As Judge Kubushi stated, the issues involved in the review application are of great public interest. [see para 27 and 32 of the judgment]. The court’s acceptance of the four additional applicants – GET, MACUA, SAHRDN and ActionAid SA – comes at a crucial time and is welcomed wholeheartedly by MCEJO who will no longer be standing alone in this matter.
Youens Attorneys: Kirsten Youens, 061 2266 868, firstname.lastname@example.org
All Rise: Janice Tooley, 083 650 5691, email@example.com
GET: Sheila Berry, 082 295 7328, firstname.lastname@example.org
MACUA: Billy Mnqondo, 060 630 5138 email@example.com
SAHRDN: Simphiwe Sidu, 076 675 8168 firstname.lastname@example.org
ActionAid SA: Sifiso Dladla, 078 849 8621, Sifiso.Dladla@actionaid.org
Download the following court papers here: