The court hearing for the review of Tendele’s vast 2016 mining right was from the 10 – 12 November 2021. The hearing of the case went well, with the Applicants’ advocate, the formidable Anna-Marie de Vos presenting a clear and compelling argument. Acting Judge Bam was clearly well prepared and concerned about the impact of mining on the community and the lack of community consultation and consent. Tendele’s advocates conceded that the mining licence was unlawful, but that if Tendele was not able to expand into the area under review, the mine would close and the people would lose their jobs. Although Tendele conceded that its public participation process was flawed and its mining right was granted unlawfully, Tendele stated its intention to mine in three locations, namely Mahujini, Malahleni and Ophondweni.
Tendele proposed that it does a public participation process in terms of the EIA regulations (to include all the 27 new specialist studies concluded last year) while the matter goes back one step to the administrative appeal stage. In other words, it will be referred back to Gwede Mantashe, the Minister of Mineral Resources, to decide on the appeal again. (Please bear in mind that it was Gwede Mantashe who refused the Applicants’ appeal in 2018 which resulted in the court application being launched in the first place). Even more astoundingly, Tendele intends to mine Malahleni and Ophondweni in the meantime.
The Applicants’ strongly opposed this approach and argued that Tendele’s invalid mining licence must be set aside, a new mining right applied for to the regional Department of Mineral Resources and the public participation and EIA process must begin. She said “you can’t just leapfrog over the law because you want to start mining in 2022.” It was made clear that if Tendele are allowed to mine in the meantime, there would be no point in doing the public participation, and the entire review application would be a waste of time. Advocate de Vos referred Acting Judge Bam to a Google Earth image of one of the three locations [image below] where the mining pit is depicted in red. She stated: “look at the homesteads around the mining area. There are thousands of people living close to the proposed mine who will be affected. None of these people have been consulted.” This goes for all of the proposed areas and when it comes to the area depicted on the map below, NO-ONE, whether inside or outside the mine area, has been consulted.
Advocate de Vos also told the judge that the manner in which Tendele had conducted themselves during the legal process was despicable and referred to the Rule 7 application papers (available here).
What was not mentioned in Court was the fact that the CEO of Tendele mine had written directly to Gwede Mantashe on 4 October begging him to intervene in the matter “to safeguard the future of the mine”. It’s no wonder that Tendele wants the matter to go back to this same Minister to decide whether the mining right should be allowed to stand or not.
MCEJO – “a big thank you to our lawyers for walking with us on this journey. It was a long one but it resulted in our voices being heard and ultimate victory will be ours.”
Judgement was reserved.
