Tendele Coal legal row mired in mutual exclusivity between mining economics and human rights

Somkhele Coal Mine, KwaZulu-Natal. Pic: GroundUp

TENDELE Coal Company says its Somkhele anthracite mine in South Africa’s KwaZulu-Natal province has operated for nearly 14 years without hiccough. Now, however, the company is embroiled in a complex legal and ethical dispute which has been given public vent following the murder on October 22 of Fikile Ntshangase, an environmental activist who opposed Tendele Coal’s plans to expand Somkhele.

Tendele Coal argues it will close in about two years without expansion into properties it calls Areas 4 and 5. These are areas situated away from current operations, the nearest pit of which is just 500 metres from the iMfolozi river, itself 4.7 kilometres from the confluence of the White iMfolozi and Black iMfolozi in KwaZulu-Natal.

Already 400 employees at Somkhele have been retrenched after Tendele Coal cut production to 47% of capacity in September. It was running out of resources. Were it to remain open, around 1,600 direct jobs would be preserved; thousands of other jobs held through local businesses providing services to the mine would also be saved. Then there are the social benefits that come from mine infrastructure. All this would be sustained for another decade, says Tendele Coal.

But the argument for economic development has been overtaken by a contest that takes place on the broader ethical battleground of deciding the greater good.

RELOCATIONS

Central to the dispute is the fate of 17 families who live on properties into which Tendele Coal wants to expand. Many families have agreed to a relocation package, but 17 families are yet to move; they are holding out for better compensation.

Richard Spoor Inc. is representing these families. Its principal attorney, Richard Spoor, argues that Tendele Coal has not only failed to abide by international standards required for relocation, but that it has also driven a wedge through the Mpunkunyoni Community by refusing to move any family until all affected by the expansion agree.

In ‘The Week In Review’, an online programme, Spoor also argued that the families were being poorly compensated. Itemising benefits that added up to about R183,000 in monetary value, Spoor asked how providing R5,000 for unplanted ploughing and fields was enough compensation for forsaking known land for other land of doubtful arability. Du Preez says Spoor misrepresented the numbers: “The minimum payment for any household is 400,000. The average for the 128 households that have signed agreements is 750,000”.

The chief concern, however, is over process: the mine’s arguing the case for thousands against the interests of a few raises the potential for victimisation and violence, Spoor said – a view supported by Kirsten Youens, who was Ntshangase’s lawyer.

The dispute has created an unusual entente cordiale. On the one hand, there’s the mine supported by its unions, the National Union of Mineworkers and the Association of Mineworkers & Construction Union (AMCU). They are united in the interests of retaining jobs and economic growth. Some R1.4bn has been invested in the area to date of which R60m has been in compliance with a Government-sanctioned social and labour plan, said Tendele Coal CEO, Jan du Preez, in an interview with Miningmx.

The mine and unions are in turn supported by national and provincial government which is presiding over a Section 54 process in terms of the Minerals & Petroleum Resources Development Act (MPRDA) and entitles the government to expropriate mined land, depending on circumstances. The Mtubatuba Municipality also supports the expansion, representing 230,000 people, says Du Preez. Add to this, the voice of the Ingonyama Trust Board, the traditional authority, but which – somewhat controversially – derives ‘rent’ in terms of a lease agreement with Tendele Coal.

“I have seen a lot of conflict between residents and these trusts around land allocation, making decisions on behalf of communities,” says Paul Kapelus, a director of Synergy Global Consulting which may be appointed to assist with the matter of mediating the compensation for relocation due to the families.

As a broad comment, not referring to the specifics around Tendele Coal, Kapelus says he’s seen some traditional communities argue that land users aren’t entitled to compensation because they don’t own it.

ENVIRONMENTAL CLAIMS

Tell that to the families that derive a benefit from farming the land, or have lived in a particular area for generations.

So say the human rights activists and attorneys who represent the other side of the fence, including Youens and Spoor. They are joined by the Centre for Environmental Rights (CER), which has Melissa Fourie as executive director; and Just Share, a shareholder activist grouping. The CER is tackling Tendele Coal’s expansion in a different way entirely, arguing the mine doesn’t comply with South Africa’s environmental laws.

The CER has had itself added as an amicus curiae or ‘friend of the court’ in respect of an appeal to be heard in November. Launched by the Global Environment Trust and the Mfolozi Community Environmental Justice Organisation (MCEJO), of which Ntshangase was a sub-committee member, the appeal follows a 2018 Pietermaritzburg High Court judgement – with costs – against an interdict aimed at stopping mining at Somkhele.

The interdict was based on a legal chestnut that has been argued previously in South African mining cases as to whether an environmental management permit (EMP) is the same as an authorisation under NEMA, South Africa’s National Environment Management Act. Fourie says there’s legal precedent saying it doesn’t, and that Tendele Coal is mining in contravention of the constitution given Somkhele’s next door proximity to the Hluhluwe-Imfolozi Nature Reserve.

“This isn’t a scene from ‘The Lord of the Rings’,” Hulme Scholes, an attorney for Malan Scholes Inc, told The Week in Review, referring to the area where Tendele is mining. Despite being near the Mfolozi reserve, the area isn’t environmentally prestigious, and isn’t worth the human cost of stopping mining, he says. “Were the appeal to be successful, Tendele would have to stop mining for two years whilst applying for an authorisation which would have disastrous economic effects. This would open the door to other challenges affecting many other mining firms and mines,” he told Miningmx.

The CER is also party to a second case, to be heard in March seeking a review of the award of Tendele’s mining right to expand into Areas 4 and 5.

Of both cases, Fourie rejects the notion of the CER is riding on the coattails of the relocation mediation. “We don’t believe our intervention to be opportunistic, but rather to promote legal certainty and good environmental governance, and to protect constitutional rights”.

VENDETTAS

Scholes is doubtful: “These are people with a personal vendetta against mining.” He asked Youens during The Week in Review: ‘Do you want to close all coal mining down?’ Replied Youens: “It’s not what I want, it’s what my clients want”. It sounded like a dodge. Interestingly, one of the original applicants in the Pietermaritzburg High Court case, a community member, Sabelo Dladla, has withdrawn his application. “The penny has dropped that if the review (of the mining right) is successful, the community will have no income,” says Scholes.

In the end, though, Scholes wants what he considers legal cul-de-sacs to be abandoned in favour of mediation. He rejects accusations the Section 54 process is to evict the families, saying rather it’s to establish a base case compensation from which to negotiate.

Ironically, Spoor also wants mediation.

“We’ve been calling for it but the mine has flatly rejected it,” he told The Week in Review. “We started this process 18 months ago,” replied Scholes of the Section 54 process. It sounded, for a moment, as if they were talking at cross purposes.

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