Legal challenge to South Africa mine expansion looks to set new landmark

  • In 2016, South Africa’s minister of minerals and energy granted one of the country’s largest anthracite coal mines the right to expand and resettle 143 families.
  • The decision was challenged by a local organization that filed an application against the minister, the Department of Minerals and Energy, the mining company, and others.
  • If the case is won, it would be a landmark for communities affected by mining activities across the country, as the government, traditional authorities and unions have shown support for the mine.

Five years ago, one of South Africa’s largest coal mines was given permission to grow even larger. In 2016, the Tendele mine was granted mining rights to an additional 212 square kilometers (82 square miles) of the northeastern province of KwaZulu-Natal. Residents challenged the decision in court in 2018, and the case is finally being heard this week. And when it comes, the decision could be a landmark for communities affected by mining across the country.

At the core of the dispute is a 2016 decision by the minister of minerals and energy to grant Tendele, a subsidiary of South African mining company Petmin, the right to extend its open-pit coal mine at Somkhele, near Hluhluwe-iMfolozi Nature Reserve. The ministry approved extending mining rights over an additional 212 km2, which would have required relocating 143 families.

Tendele has been operating the mine since 2007. It has prompted complaints by local communities about dust pollution affecting people’s health, houses cracking due to blasting, polluted groundwater, and loss of livestock.

The court challenge was initially filed in 2018 by the Mfolozi Community Environmental Justice Organization (MCEJO), a local group formed in opposition to mining in the area. MCEJO has since been joined by four co-applicants representing mining-affected communities and environmental defenders in South Africa. They argue that the environmental impact assessment (EIA) for extending the mine was flawed and consultation with the community was inadequate.

“There was no meaningful stakeholder input” and “no prior, free and informed consent obtained from the occupiers of the land,” court papers read.

The case is regarded as a potential landmark for communities affected by mining in South Africa. “This case is vital,” said attorney Kirsten Youens, whose nonprofit law clinic All Rise is representing MCEJO. “What happens in Somkhele is so reminiscent of apartheid days when people were told that they had no rights and had to go with it. This case will show that communities can stand up to big powerful governments and industries.”

Local communities complain about dust pollution affecting people’s health, houses cracking due to blasting, polluted groundwater, and loss of livestock caused by Tendele’s mining. Image by Rob Symons via Flickr (CC BY-NC-ND 2.0).

Long, violent struggle

The hearing has been delayed five times, most recently due to the sheer volume of paperwork submitted by the parties. The case finally opened on Nov. 10 and is scheduled to run for three days, with judgment expected in February 2022 at the earliest.

For Tendele, the matter has become increasingly urgent as the miner says the coal reserves in the current areas will soon be depleted. “Should the mine be unable to very soon open up an extended area, it will be forced to close,” CEO Jan du Preez told Mongabay. According to du Preez, if the mine closes down, 1,200 employees and 70 locally based entrepreneurs would lose their primary source of income. This could be as soon as June 2022.

The company is seeking to have the case referred back to the minister of minerals and energy, which would allow it to continue preparations to expand. But MCEJO attorney Youens insists the extended mining right be withdrawn and the company start again from the beginning.

The dispute around Somkhele has been accompanied by tensions and violence targeting opponents of the mine. It peaked with the murder of Fikile Ntshangase, one of the leading voices against the expansion, in October 2020.

MCEJO itself was divided in the course of the legal battle. The organization, now counting more than 3,000 members, originated in the nearby Fuleni community where residents opposed a planned coal mine in 2015, and soon expanded to Somkhele. The executive committee is based in Fuleni.

Weeks before Ntshangase’s murder, seven of nine members of its Somkhele subcommittee — all but Ntshangase and the chairperson — had signed an agreement with the mine to withdraw from the court case.

The seven have since been expelled from the organization, but in March this year, Tendele signed a “peace accord ” with this splinter group of MCEJO and other local groups in favor of the mine.

An attempt by Tendele to use the internal conflict to challenge Youens’s mandate as the legal representative of MCEJO was dismissed by the court in April.

Four gunmen shot and killed anti-mining activist Fikile Ntshangase in her home on Oct. 22, 2020.

Company’s shrinking claim

Even before the case is heard, the resistance has affected the narrative. Following accusations that the mine is dividing the community, Tendele eventually admitted that the process of obtaining the new mining right was flawed.

In March 2021, the miner acknowledged a “lack of evidence” proving that the Department of Environmental Affairs had been consulted by the minister of minerals and energy before his decision to grant the mining right, as required by the Mineral and Petroleum Resources Development Act (MPRDA).

Tendele also accepted that the EIA process did not comply with the MPRDA. It concluded that “neither the Regional Manager nor the Minister could have reasonably satisfied themselves that the proposed mining will not result in unacceptable pollution, ecological degradation or damage to the environment.”

The company further admitted “imperfections” in the public participation process, specifying that “Tendele did not obtain consent from MCEJO’s members and other lawful occupiers of the proposed mining sites as required under the Interim Protection of Informal Land Rights Act 31 of 1996.”

Tendele has since reduced the prospective mining area by 92%, now seeking only 17 km2 (6.6 mi2), and is claiming to “retain only those areas which it requires in order to keep the mine operating in the short to medium term.”

The revised extension has left some households uncertain if the mine’s claims still include their homes. “They keep changing the area that is going to be affected,” said Skhombuse Buthelezi, a member of MCEJO who lives in the Ophondweni community that falls into the mining area under dispute.

He said his family was offered compensation of 500,000 rand (nearly $33,000) to relocate, but “no one from the mine has ever engaged with us.” All communication has been done through documents.

Protest against Tendele in 2017. Image by Rob Symons via Flickr (CC BY-NC-ND 2.0).

Possible settlement emerging

While most affected families have signed agreements with the mine, 10 families have instead entered a mediation process to negotiate a compensation scheme outside the courts.

Richard Spoor Attorneys is representing these households in the mediation. Lawyer Johan Lorenzen said they seek “sustainable compensation based on international best practice grounded in livelihood restoration” rather than Tendele’s offer to pay each based on how much their houses are worth.

Du Preez said that mediation is progressing well. He said he’s also confident that his company has the government’s support: “We must be the only mining company in South Africa that has the Minister and the Premier and the Municipality and Traditional Council and NUM [National Union of Mineworkers] and AMCU [Association of Mineworkers and Construction Union] publicly supporting the mine.”

For its opponents, the case illustrates the struggle faced by communities in mining areas in South Africa and beyond.

“It pits the greed of corporate entities against the environmental and social concerns of the people and is indicative of struggles faced by mining-affected communities across the country,” said Christopher Rutledge, executive director of Mining Affected Communities United in Action (MACUA), an organization representing mining communities in South Africa that joined MCEJO as an applicant earlier this year.

“So many mines operate above the law,” Youens said. “They know they play such a big role in the economy, they just run over people who don’t know their rights.”

Rutledge was also critical of the role played by the Department of Minerals and Energy. “The DMRE continues to collude with business interests to the detriment of local communities and the environment.”

The DMRE did not respond to questions about this case in time for publication.

Tensions around the mine persist today. Activists and residents opposed to the mine report continuing intimidation and threats, exacerbated by pressure on the remaining holdouts to accept compensation payments and sign relocation agreements.

South African activist killed as contentious coal mine seeks to expand

Banner image: View of the mine from a nearby homestead. Image by Rob Symons via Flickr (CC BY-NC-ND 2.0).

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