Northern KZN mine can stay open as environmentalists lose court battle

Environmentalists have lost a Supreme Court of Appeal (SCA) bid to interdict a northern KwaZulu-Natal mine from operating, arguing that it did not have correct environmental authorisation.

While one of five SCA judges found that the mine was operating illegally, the court ruled - in a majority judgment of four to one - in favour of Tendele Coal Mining, which operates one of the country’s biggest anthracite coal mines, near Mtubatuba in Zululand. Four of the five judges dismissed the application.

Even the dissenting judge, Ashton Schippers, said that halting the mine would decimate the local economy - and suggested giving Tendele a year to get the necessary environmental authorisation.

The matter was brought before the SCA after the Global Environmental Trust (GET) lost its case in the KwaZulu-Natal high court. It was acting on behalf of an anti-mining lobby group, the Mfolozi Community Environmental Justice Organisation (MCEJO), which was opposed to the Somkhele mine in Mtubatuba.

The majority SCA judgement, authored by Judge Ponnan - with three other judges concurring - found that the environmentalists did not make out their case to interdict the mine from operating. In fact, the majority judgment questions whether the application for leave to appeal to the SCA should have granted in the first place.

The GET had argued that the mine was operating unlawfully by not having correct environmental authorisation under the National Environmental Management Act. But the judges disagreed.

“The appellants’ founding affidavit lacks the necessary allegations to sustain this ground of unlawfulness,” writes Ponnan.

He then adds that the order the GET and other applicants sought was far-reaching, and, if granted, would essentially close Tendele’s operations - “more the reason, one would think, for a proper case to have been made out on the papers.”

“In the view that I take of the matter, which is evidently much narrower than that of my colleague, Schippers JA, the high court correctly refused to grant the relief sought,” Ponnan writes.

The case was argued before the SCA in November.

Kirsten Youens, an environmental lawyer who represented MCEJO in the SCA case, said they were likely to take the matter to the highest court in the land.

“Schippers’s dissenting judgment is excellent and exactly what we need to take the matter on appeal to the Constitutional Court. The majority judgment focuses on procedure over justice. This case is too important to environmental law jurisprudence for it to be decided purely on procedural law,” she said.

In joint comment from CEO Jan du Preez and business development manager Nathi Kunene, the mine said it was “pleased at the overall finding, in that the interdict application against Tendele mine has been rejected, and it allows our mining operations to continue without disruption”.

“We are pleased the court recognised the importance of the mine to the area ... It is a complex judgment, and we and our legal advisers are still studying it in order to understand its full detail,” they said.

Du Preez and Kunene said they would continue to work with all stakeholders “in an attempt to find mutually beneficial solutions to ensure the long-term future of the mine”.

“The pandemic has created havoc in the area and it is time that all differences are set aside to try [to] avoid an economic disaster in the area if the mine closes,” they said.

In Schippers dissenting judgment, he argued that mining should be allowed to continue despite because of the importance of the mine to the area.

Schippers said the court needed to be “pragmatic in crafting just and equitable remedies”.

“A pragmatic approach that grants effective relief — that upholds, enhances and vindicates the underlying values and rights entrenched in the constitution — and which will allow Tendele, the primary employer in Mtubatuba, to continue mining while it brings itself into compliance with Nema, is called for in this case.

“If Tendele’s mining operations are brought to a grinding halt, this would have catastrophic consequences,” Schippers writes.

The mine is the “primary driver of economic activity in Mtubatuba”, said Schippers, and if mining operations were to stop, the “South African anthracite market would be wiped out, which would have a knock-on effect on the ferrochrome industry that employs more than 20,000 people and is a major exporter in the South African economy.

“The termination of mining operations, even temporarily, would be the death knell of the Mtubatuba economy and would result in the loss of the livelihood of the Mpukunyoni community, together with significant benefits described above,” wrote Schippers.

For this reason, Schippers said that the ruling should be suspended for 12 months to allow Tendele to “obtain the requisite environmental authorisation”.

Schippers was overruled by the other four judges.

Meanwhile, Tendele said on Wednesday that it had offered a R20,000 reward for “credible information” that would lead to the arrest of those who murdered Ntshangase in October.

Ntshangase was on the phone to a friend when her assailants walked in and opened fire on her. At least one bullet was shot while she lay on the floor. A bullet hole was still visible in the floor where her body lay when Sunday Times Daily visited in the wake of the murder.

The offer comes on the back of a “peace accord” Tendele said it had signed.

“The accord is the basis for all stakeholders to work together constructively through dialogue and mediation to seek a resolution [to] the current and future issues and disputes, including social and environmental issues, and to reduce or eliminate tensions and to ensure the survival of the Tendele mine.

“The accord is also a response to several months of tensions that culminated in the murder of Mrs Fikile Ntshangase in October 2020 and honours Mrs Ntshangase and condemns all violence and intimidation, including separate incidents directed at Mrs (Tholakele) Mthethwa and Mr (Bheki) Mdletshe of Ophondweni.”

In response to the accord, Youens said: “We are pleased they have realised that they have to make an effort towards reducing the violence directed at our clients. Our clients have been the victims for long enough. Perhaps this will help.”