Yearly Archives: 2022
In South Africa, a community says no after a coal miner said go
Expert report uncovers ‘hidden mental trauma’ of opencast coal mining in rural KwaZulu-Natal | Daily Maverick
‘Those who witnessed the (grave exhumation) process said that it was horrifying. Some saw semi-decomposed bodies removed, while others reported diggers plunging pickaxes into the graves and returning with bones stuck on the picks. One resident said that he saw the skull of his loved one attached to the end of the pickaxe.’ — Dr Garret Barnwell.
Coal mine residents suicidal, suffer long-term trauma, says report | Juta Medical Brief
A recent report has highlighted the psychological impact of coal mining on local communities, with an expert saying years of residents’ exposure to several environmental stressors have contributed to collective trauma.
Psychological Report released highlighting the mental health harm to communities living next to open-cast coal mine
On 25 October 2022, we held a webinar which released the report entitled ‘Everything for Dust: the Collective Trauma of Opencast Coal Mining on Residents in Somkhele, KwaZulu-Natal’, with the content of the report as well as the line-up of speakers, attracting participants from South Africa and around the world.
When we began working with our clients on the border of Tendele Coal mine in northern KwaZulu-Natal in 2016, we could not help but notice their extreme feeling of hopelessness and fear. A sense of brokenness prevailed. There was, and continues to be, a desperate need for awareness of and assistance given to those in psychological need. In many areas of the country worldwide, there have been reports and discussions about the physical impacts of coal mining. What has been less dealt with, and not much at all in South Africa is the psychological impact of coal mining on mining-impacted communities.
We can all acknowledge that during the turmoil of the Covid pandemic, we realised how little mental health had been factored into the lockdown plans until the psychological repercussions of being locked into our homes, cut off from social connections, and living in fear had on people became very clear and impossible to ignore. It was something we all felt personally. And we began talking about it. Perhaps the one positive outcome of Covid was the potential for better engagement around mental health.
While we at ALL RISE knew that an assessment of our clients’ mental health was needed to ascertain what could be done to help them, Dr Barnwell’s findings were worse than we expected.
Section 24 of the SA Constitution speaks to our right to an environment that is not harmful to our health or well-being. This includes our mental health and well-being. In reading the findings of Dr Garret Barnwell, it is essential to also keep in mind that everyone has inherent dignity and the right to have their dignity respected and protected in terms of Section 10 of the Constitution. In terms of section 11, everyone has the right to life. There are many more human rights in the Bill of Rights that intersect with mental health; none are more so highlighted than in the report we are about to discuss.
Dr Garret Barnwell, Dr Dineo Skosana, Dr Asanda Benya and Dr Michael Edelstein presented on loss, psycho-social impact, the cultural significance of burial in the Zulu culture, environmental harm, and they all agreed that the impacts of mining on communities are extremely harmful, on-going and collective. Dr Barnwell’s report was specific to the people he interviewed and covered the historical and current trauma that the participants had and continue to experience due to their proximity to open-cast coal mining. One of the causes of the mental distress discussed in detail during the webinar was institutional betrayal, where those who are responsible for protecting communities (e.g., Tendele mine, government, traditional leadership and local authorities) are perceived as perpetrating wrongdoings, neglecting or scapegoating those who raise complaints and are perceived as not responding appropriately to the (chronic) traumatic and stressful incidents.
Ironically, while the findings of institutional betrayal and related trauma were being discussed, real-time examples were taking place on the Q&A forum online (although only visible to the speakers). About 6 of the webinar participants from Tendele mine, mine unions, traditional leadership and the Zululand Anthracite Colliery were sending a slew of messages – making it clear that reports and conversations that do not support a pro-mining narrative would not be tolerated. Not one expressed any concern for the well-being of the people who participated in the report. One person accused the community person who presented in the webinar of not being from the community and of lying.
In commenting on Dr Barnwell’s report, Dr Skosana referred to her research in the same community – the cultural significance of graves and the horror that occurs when deceased loved ones are exhumed and reburied during relocation processes. Dr Benya spoke about her research done in relation to mines (including Tendele), violence and gender – with women being so significantly burdened. Dr Edelstein’s fifty-year career in psycho-social impacts, including his report on Somkhele in 2018, brought the discussion together and concluded with the high praise of All Rise as being ‘out in front’ in the field of psycho-social impact assessments.
Without having ever had any of these great intellectuals in a virtual room together before, it was amazing to hear how their findings reflected each other’s and how they responded in unison to questions put to them.
A very emotional presentation by a community member who shared her real experiences of the trauma she and her family have experienced living on the boundary of Tendele coal mine hammered home the reality of Dr Barwell’s findings. The community member referred to herself with a made-up name to protect her identity for fear of reprisal. The murder of Fikile Ntshangase two years ago is never far from our minds.
We are enormously grateful to Dr Garret Barnwell for his in-depth study, sensitive approach to our clients, and highly professional manner. His report, with its hard-hitting truths, is the starting point for the conversation that must continue about the impact of mining on the mental health of mining-impacted communities. Indeed, as All Rise, we hope that the findings of this study bring us closer to securing justice for the community in which the study was done and bring much-needed awareness to the deficiencies in our healthcare systems and environmental management systems that need to be addressed.
On a side note, there was something positive (and ancillary) that Dr Barnwell expressed after his study, which we, as lawyers, did not anticipate. He observed that All Rise plays a fundamental role in healing the psychological wounds of its clients. Why? Because if collective trauma is associated with ongoing transgressions of human rights, then justice is essential to psychological well-being, and access to justice is something that we have provided. Given the ongoing hardships our clients face, this was good to know.
We thank each speaker for taking time out of their busy schedules to be with us on the panel, adding their own research or story, insight, and experience. We sincerely thank those who took part in the psychological study and were willing to share their experiences to raise awareness of this critical but often neglected issue of mental health.
- Dr Barnwell’s report is uploaded to our All Rise website and may be accessed here.
The Webinar recording may be accessed here.
Communities celebrate as Court sets aside Shell’s exploration right off the Wild Coast of South Africa
This judgement is momentous in it’s recognition that consultation is not something that can be done as a box ticking exercise in an EIA process, but requires “a genuine, substantive, two way process…”. We hope that it will pave the way for proper community consultation in future, particularly when it comes to mining and exploration.
See official press release below:
Press release: Communities celebrate as Court sets aside Shell’s exploration right off the Wild Coast of South Africa
For immediate release: 01 September 2022
Makhanda, South Africa: Today, the High Court in Makhanda ruled that Shell’s exploration right to conduct seismic surveys on the Wild Coast of South Africa was granted unlawfully and therefore set it aside.
This judgment, written by Judge President Mbenenge, is a monumental victory for the planet, won by Wild Coast communities.
The court case was brought by Sustaining the Wild Coast NPC, Wild Coast communities, Wild Coast small-scale fishers and All Rise Attorneys for Climate and Environmental Justice, represented by the Legal Resources Centre (LRC) and Richard Spoor Attorneys.
Natural Justice and Greenpeace Africa applied to join the court case, and were represented by environmental law firm, Cullinans and Associates.
The case sought to review the decision by the Department of Mineral Resources and Energy to grant an exploration right to Shell and Impact Africa, allowing them to conduct seismic surveys off the Wild Coast of South Africa, in pursuit of oil and gas. The seismic surveys would involve a ship towing high-volume airguns which would blast low-frequency sounds at the seabed in regular intervals in order to map the seabed for oil and gas.
The applicants argued that the right should not have been granted on various grounds:
- That the exploration right was granted unlawfully since there was no consultation with affected communities and that the companies’ consultations with traditional leaders was insufficient.
- In awarding the exploration right, the decision-makers failed to consider the potential harm to the fishers’ livelihoods, the impact on their cultural and spiritual rights and the contribution of oil and gas exploitation to climate change.
- In awarding the exploration right, the decision-makers failed to consider the Integrated Coastal Management Act and its requirement to consider the interests of the entire community – including fishers and also ocean life.
Findings of the Makhanda High Court:
The court found in favour of the applicants on all the grounds of review.
On the issue of public participation, the court found that it was incorrect for consultations to only be conducted with kings, monarchs and other traditional leaders and that such an approach “finds no space in a constitutional democracy” (para 92) and further, that “a chief does not denote a community.” (para 93). “There is no law, and none was pointed to, authorising traditional authorities to represent their communities in consultations.” (para 92)
The judge went further to find that “…meaningful consultations consist not in the ticking of a checklist, but in engaging in a genuine, bona fide substantive two-way process aimed at achieving, as far as possible, consensus…” (para 95).
On the issue of harms to the environment, the court found that due to the apparent dispute between expert evidence on the harms of seismic testing to marine life, a precautionary approach should have been adopted by the decision-maker. This applies particularly when there is uncertainty and requires risk-aversion and caution to be taken.
Further, the judge acknowledged the key role of the ocean in the livelihoods and spiritual and cultural life of coastal communities. “The applicant communities contend that they bear duties and obligations relating to the sea and other common resources like our land and forests; it is incumbent on them to protect the natural resources, including the ocean, for present and future generations; the ocean is the sacred site where their ancestors live and so have a duty to ensure that their ancestors are not unnecessarily disturbed and that they are content.”
There is no evidence, said Mbenenge JP, that the decision-makers took the potential harm to these religious and ancestral beliefs and practices into account. That rendered the decision unlawful.
In relation to climate change as well as the issues of the right to food, the judge found that, had the Minister taken these issues into account, he may have found that the project was “neither needed nor desirable” (para 125).
The court found that the Integrated Coastal Management Act needed to be considered in the decision-making process, which “introduces an integrated approach to management and in this instance, the decision-maker did quite the opposite and dealt with the application as an energy-sector specific issue.” (para 130). The court found that the Minister was duty-bound to consider the ICMA and this in itself, means that the exploration right must be reviewed.
The court also found that the applicants did not have to lodge an internal appeal as required by the Promotion of Administrative Justice Act (PAJA), as the commencement of the seismic survey at the time of launching the application was imminent. Furthermore, the Minister of Mineral Resources and Energy, Gwede Mantashe, who had previously referred to any opposition to oil and gas developments as “colonialism and aparthied of a special type”, could not be said to have considered the internal appeal with an open mind and therefore the applicants’ perception of bias was warranted.
Additionally, the court found that the Minister could have simply abided by the decision of the court in relation to part A (the interdict which was granted by Judge Bloem in December 2021) but instead decided to pin his colours to Shell’s mast by refusing to review the exploration rights awarded to them and opposing the interdict in part A.
Notably, the judge stated that Shell’s Environmental Management Programme (EMPr) contained statements promising jobs and increased government revenue. However, these claims were not supported by evidence in the EMPr. In paragraph 135 of the judgment, the court found that there was no explanation as to how jobs would be created, “or how the seismic survey will improve the socio-economic circumstances in which most South Africans live”. This was particularly important as Shell argued that the applicant communities, who are poverty-stricken, would benefit economically from their oil and gas exploits.
On the joinder, the applicants, Natural Justice and Greenpeace Africa, were successful.
The respondents may now apply for leave to appeal the judgment to the Supreme Court of Appeal.
Quotes from the applicants
“Winning this means we are all moving towards an understanding that we need to find sustainable livelihoods; we need to move away from fossil fuels. This is for the good of everyone. Allowing Shell and the government to continue exploring for oil and gas and other fossil fuels would be detrimental to everybody’s lives and to the life of the planet. Winning means a sustainable life on this planet. A victory for the planet. Victory for future generations. It is not about us. We are in this fight for the good of the planet and the good of future generations.
The fight of coastal communities versus Shell is a struggle for environmental justice, for the protection of rural livelihoods, for sustainable development and for the life of the planet. Shell and the government are fighting for profit in the face of climate change that is putting the future of humanity at risk.”
- Sinegugu Zukulu, Sustaining the Wild Coast
“This victory is not just a victory for Wild Coast communities and making our voices heard. This is a victory against capitalist extraction and destruction of our future. This victory is not just about protecting the ocean upon which rural coastal communities depend. This is about protecting the planet and the whole of humanity.”
- – Nonhle Mbuthuma, Amadiba Crisis Committee
“As Wild Coast people, we live off the land and the ocean. Government tells us that oil and gas will bring job opportunities but we know very well that this will destroy our livelihoods. The ocean is our best defender against climate change, shielding us from its worst impacts. By helping the ocean we help ourselves. Ocean action is climate action.”
- Siyabonga Ndovela, Wild Coast resident
“These brave community members scored a very significant victory on behalf of rural people across the country who are dispossessed daily of their land and resources by the persistent practice of the State and companies who ignore them and speak only to their traditional leaders. There is no law that authorises chiefs and monarchs to do that and, in any event, the Court went on, there is no space in a constitutional democracy for such a top-down approach.”
- Wilmien Wicomb, Attorney, Legal Resources Centre
“Greenpeace Africa celebrates this decision to protect the Wild Coast from Shell’s destruction. It is proof that the world is moving into an era of social and environmental justice, where the voices of people are put before the profits of toxic fossil fuel companies.
There is still much work to be done to undo the destructive colonial legacy of extractivism in Africa, but this decision gives South Africans renewed hope that people’s lives and precious ecosystems are valuable and worthy of protection from climate criminals. The future is renewable!”
- Melita Steele, Interim Programme Director, Greenpeace Africa
“The victory in the Shell case is truly a victory for the people and planet. It sets an important precedent during this climate emergency. The court was clear that communities need to be properly consulted and that environmental impact assessments are critical. The cultural and spiritual connection to the land and ocean featured strongly in the judgment. This victory provides hope and momentum as people stand up across the planet. There are 148 oil and gas projects in the pipeline in Africa. This victory will ensure the tide turns.”
- Pooven Moodley, Director, Natural Justice
“The court’s decision today is a victory for all of us. This case was a case for all communities across the country. The proliferation of oil and gas exploration applications across South Africa’s shoreline does not bode well for our future, as the climate crisis requires us to stop all new fossil fuel projects.
This court victory shows that the fossil fuel companies are required to follow the law, include all affected people in public participation processes and consider all the harms to the environment. We are especially pleased by the Judge’s findings on meaningful public participation, that a monarch cannot represent communities in consultations about developments which affect their rights. With so many communities vulnerable to having their land and livelihoods impacted by fossil fuel developments, it is crucial that they are properly consulted. This judgment strengthens our law.
We want to acknowledge and thank our community representatives who have traveled the whole of yesterday to make it to the Makhanda court today – as they know how important this judgment will be for their communities – and for all of us.
The success of this case is based on the collaboration of many civil society organisations across South Africa and the world”
- Melissa Groenink-Groves, Programme Manager, Natural Justice
ENDS
For media inquiries
- Sinegugu Zukulu, Sustaining the Wild Coast NPC, zukulusinegugu@gmail.com +27 72 428 5109
- Nontsindiso Nongcavu, Fisherman and Coastal Links Eastern Cape Chairperson +27 79 593 6693
- Nonhle Mbuthuma, Amadiba Crisis Committee, nonhlembuthuma@gmail.com +27 76 359 2982
- Siyabonga Ndovela, Wild Coast resident +27 710 084 989
- Thabo Ramphobole, Legal Resources Centre, thabo@lrc.org.za, +27 68 584 2442
- Katherine Robinson, Natural Justice, katherine@naturaljustice.org +27 762 276 517
- Claire Martens, Natural Justice, claire@naturaljustice.org +27 82 470 1187
- Chris Vlavianos, Greenpeace Africa, cvlavian@greenpeace.org +27 798 837 036
- Annette Gibbs, Cullinan & Associates, annette@gibbsmedia.co.za +27 82 467 1295
Notes for editors
Judgment can be found here:https://naturaljustice.org/wp-content/uploads/2022/09/Judgment-on-Sustaining-Wild-Coast-v-Minister-of-Mineral-Resources-Energy-Others.pdf
Voice recordings of quotes from the applicants can be found here.
August Newsletter: The Start Of Women’s Month Brings Good News!
Kirsten Youens was awarded third place in the category of outstanding human rights activist, social justice activist, and pro bono woman lawyer at the Woza Africa Awards recently.
WOZA AWARDS are annually presented to women lawyers in Africa in recognition of their outstanding dedication, achievements and contribution to the profession, whether it be services, legal education, human rights or the pro bono sector.
More good news is the rallying of the social justice sector in support of ALL RISE against spurious attacks made against us by the respondents in the Tendele review case. In an extraordinary show of public solidarity, 38 civil society organisations supported a call on the National Union of Mineworkers, Mpukunyoni Traditional Authority, Mpukunyoni Community Mining Forum, and the Association of Mineworkers and Construction Union and their representative attorney, Dennis Sibuyi, to:
– Respect the 4 May Pretoria High Court ruling that Tendele Coal Mining’s 2013 application for a mining right (to expand its Somkhele operations) failed to comply with the law and that the decision of officials in the Dept. of Minerals and Energy to award that right was invalid;
– Respect the right of the Mpukunyoni people to assert their constitutional rights without fear of reprisal; and
– Respect the right of ALL RISE to act without fear of harassment, intimidation and defamation.
The 38 organisations’ letter follows a 17 May 2022 statement titled “Mpukunyoni Community calls on All Rise and their funders to account to the community for their efforts to close Tendele Mine”, which attacks All Rise, demanding to know the source of its funding, accusing it of wanting to close the mine and stating that All Rise’s actions are “tantamount to a gross human rights violation”.
All Rise is genuinely humbled by the support and thanks every single organisation that signed this letter. An attack on one is an attack on all.
In more sombre news, the applications for coal mining or prospecting around the Hluhluwe-iMfolozi Park are increasing. These include:
- Prospecting activities proposed by Imvukuzane in the Fuleni Reserve.
- The current and future mining operations of ZAC located northwest and west of Imvukuzane’s proposed prospecting area, and which fall in the five traditional authority areas of Zungu, Matheni, Mlaba, Mandlakazi and Ximba; the iMfolozi catchment; and on the northern and western boundaries of the Hluhluwe-iMfolozi Park.
- The current and future Somkhele mining operations of Tendele Coal Mining (Pty) Ltd in the Mpukunyoni Traditional Authority area and the iMfolozi and other catchments; and on the eastern boundary of the Hluhluwe-iMfolozi Park, and immediately north of the Imvukuzane prospecting area.
- The other current prospecting applications by Yengo Resources (Pty) Ltd) in the Ximba Traditional Authority area on the southwestern boundaries of the Hluhluwe-iMfolozi Park; by Tendele Coal Mining (Pty) Ltd in the Mpukunyoni Traditional authority on the eastern boundaries of the Hluhluwe-iMfolozi Park and by Raycom Resources Pty Ltd, southwest of the Imvukuzane prosecting area and the Hluhluwe-iMfolozi Park.
- The previous prospecting activities already conducted by ZAC in the same area that Yengo is now proposing to prospect; by Ibutho Legacy (Pty) Ltd in the same prospecting area that Imvukuzane is now proposing to prospect; and by Tendele in the same area for which it is again applying for a prospecting right.
- The mining rights held by Mbila Resources (Pty) Ltd for the Msebe Opencast Anthracite Mine and Mbila Underground Mine both east of Nongoma, also in the Zululand District Municipal area.
The communities who live in these areas are our clients as members of the community organisation we represent, MCEJO. Currently, we are working with the Fuleni community, representing them and other organisations in opposing the prospecting application over their land.
We continue to represent the Somkhele MCEJO community in many aspects. As Tendele has begun a new Scoping and EIA process (as per the requirements of the May judgment) in the three villages it plans to mine, one of our key focus areas is assisting our community and NPO clients in participating in this process. There is also an appeal against the granting of Tendele’s water use licence waiting for a hearing with the Water Tribunal.
Yet another unfortunate decision by government on 8 July 2022 was the rejection of several appeals to the Environmental Authorisation allowing for the clearing of 8000 hectares of indigenous bush for the Musina-Makhado Special Economic Zone ‘mega city’ project in Limpopo. The rejection of the appeals, collated by a loose coalition of social movements and interested and affected parties, including those involved with activist research and support for people in Limpopo, has been met with the coalition’s profound disillusionment as to the agency’s endorsement of the flawed EIA process. All Rise submitted an appeal in collaboration with CALS that detailed the flaws of the EIA process and the project as a whole. We are now discussing collaborating with the coalition to take this decision on review.
Ending on a good note, All Rise continues to provide workshops to communities on the EIA regulations and how to meaningfully participate in the EIA processes. In the next month or two, we are also rolling out some workshops on climate justice and look forward to sharing that with you.
During Women’s Month, we will introduce you to each member of our amazing all-women board of directors, so keep an eye on our social media platforms.
We wish you a happy August!
Kirsten, Janice and Lihle
**As a non-profit clinic, we need funding to do our work. If you would like to support us, we would be very grateful! Head to this link to donate: https://allrise.org.za/donations/