Community Rights Vindicated against Unscrupulous Department of Minerals and Energy and “Egregious” Mining Company

Judgment  in the long-standing matter of MCEJO and Others v Minister of Minerals and Energy and Others was handed down on the evening of 4 May 2022. 

In her well-reasoned 48-page judgment Judge Bam finds in favour of the Applicants by rejecting all of Tendele’s arguments and declaring Tendele’s mining right invalid. The Minister’s decision in dismissing the appeal against the grant of the Mining Right and the approval of the Environmental Management Programme is also declared invalid and set aside. The Applicants, the Mfolozi Community Environmental Justice Organisation (MCEJO), the Global Environmental Trust, MACUA, SAHRDN and ActionAid SA, are elated by the victory.

By way of background, in May 2016 Tendele was granted a mining right of 212 km2 to significantly expand its Somkhele opencast coal mine, located in northern KwaZulu-Natal,  subject to approval of an Environmental Management  Programme (EMP). Tendele’s EMP, prepared as part of a Scoping and Environmental Impact  Assessment (EIA) under the Mineral and Petroleum Resources Development Act (MPRDA) was approved several months later in October 2016. The applicants appealed to the Minister of Minerals and  Energy in August 2017 against the Department of Mineral Resources’ (DMR) decision to grant  it. The Minister subsequently dismissed MCEJO’s appeal in June 2018. In November 2018 the applicants brought an application in the Pretoria  High Court to review and set aside the 2016 Mining Right, the approval of the EMP and the  Minister’s appeal decision in Tendele’s favour. 

The Court determined three main issues, namely: i) the defective Scoping and EIA; (ii) the ground based on the Interim Protection of Informal Land Rights Act (IPILRA); and (iii) defects in public participation [para 24] Judge Bam states in her no-holds barred judgment that “the wheels came off” during the scoping phase “when the regional manager of DMR, KwaZulu-Natal (RM), allowed Tendele’s consultants, GCS, to dictate to him how Tendele intended to carry out the exercise that would lead to the Scoping Report instead of insisting on compliance with the law” [para 14] She further states that “[i]ndeed the record shows that the RM accepted Tendele’s Scoping Report, even though it had been compiled without consultation with interested and affected parties and without providing proof of the information shared during the consultation, which was clearly in violation of the law”. [1]

Judge Bam provides detailed interpretation of the law around scoping and EIA and refers to Tendele’s view that the scoping phase required no public participation as “a fundamental breach of the law with regard to public participation”. She further states that “Tendele’s attempts to justify their exclusion of groups … was nothing short of egregious”. The Scoping/EIA failed to meet the demands of legislation. She states that “[t]he attitude displayed by Tendele during the scoping phase of it’s application process is offensive. It portrays Tendele as an ‘unbridled horse’ that showed little or no regard for the law” [2]

A large portion of the judgment deals with the applicants’ accusation of Tendele riding roughshod on the rights of the community in that the applicants’ members were neither consulted nor did they consent to the deprivation of their communal rights to the land in terms of IPILRA. 3  [para 39] The Court refers to Tendele’s ‘disturbing’ defence that ‘since the grant of a mining right does not extinguish the right of a landowner or any other occupier of the land in question; the question of compensation does not arise”. [3] According to Tendele’s interpretation of IPILRA the requirements of compensation and section 2(4) (community consent) are only triggered when the deprivation is caused by a disposal of land. [4]

Judge Bam finds that “Tendele’s interpretation appears to lose sight of the fact that it is interference with the use, enjoyment or exploitation or diminution to the occupation or ownership that brings about compensation. For this reason, how the deprivation arises should not water down the compensation element provided for in IPILRA. Tendele’s interpretation epitomizes the ‘blinkered peering at an isolated provision in a statute’ that the court warns against in Scribante as opposed to reading the statute purposively… Tendele’s’ interpretation waters down, if not renders nugatory, the protection offered by IPILRA to shield the informal rights holders. Such interpretation cannot be allowed”. [5]

Tendele’s second defence that it obtained consent from the Inkosi, is also shot down in flames by Judge Bam. The referenced consultations with iziNdunas who provided consent by way of a Resolution of the Traditional Authority “says nothing more that the [traditional authority] granted consent to Tendele. There is no evidence to support that the applicants were lawfully deprived of their informal rights in terms of IPILRA. There is no evidence of invitation to the community and its representatives, no agenda, no minutes, no evidence of who was present. The Resolution on its own does not meet the requirements of IPILRA”. [6]

Judge Bam’s final reason why Tendele’s defence must fail is centered around the fact that a decision to grant consent to a mine “has far reaching consequence in so far as the mining operations ability to interfere with the occupiers’ and landowners’ rights.” [7] With reference to the court in The Ingonyama Trust and Advancement of the South African Constitution and Others v The Ingonyama Trust and Others, Judge quotes:

“Consent must be given freely, without duress or deception, and with sufficient legal competence to give it….Consent must be properly sought and freely given, and the person whose consent is required must have full and reliable information relating to the scope and impact of the subject matter, and must have the choice to give or withhold his or her consent.”

“In all, Tendele did not obtain consent as envisaged in section 2 of IPILRA and the applicants ground therefore succeeds”.[8]

The appeal is therefore remitted back to the Minister for reconsideration in accordance with the findings of the judgment. [9]

In summary, the findings and the effects thereof are:

  1. The Scoping/EIA was unlawful. Prior to the Minister making a decision on the Appeal, a valid Scoping/EIA must be conducted.
  2. There was no consent in terms of IPILRA. Prior to the Minister making a decision on the Appeal, informed consent must be obtained from the majority of those whose land rights will be affected by the mining operation.
  3. The public participation process was defective. Prior to the Minister making a decision on the Appeal, a full public participation process must be conducted, and such process must comply with the requirements of the Public Participation Guidelines in terms of the National Environmental Management Act, 1998 and Chapter 6 of the Environmental Impact Assessment Regulations, 2014.

Costs were awarded to the applicants, including the costs of two counsel for this application and the Rule 7 application which was brought by Tendele in December 2020 and withdrawn at the 11th hour in March 2021.

“Tendele is the author of its own misfortune. “Had DMR and Tendele complied with the law back in 2013 when this mining application process began, none of this would have been necessary. The Court has made it clear that the people of the land must be seen, must be heard, and must be consulted when their rights are going to be so fundamentally affected. The fact that the DMR and Tendele ignored the law and the people for so long is the reason that the applicants were forced to bring this application. It has been a long road but finally they have won.” Kirsten Youens, attorney for the Applicants.

The applicants wish to thank Legal Aid SA for its assistance in this matter.

References to paragraphs in judgment:

  1.  [para 14]
  2.  [para 37]
  3.  [para 51]
  4.  [para51]
  5.  [para 56] 
  6.  [para 66]
  7.  [para 67]
  8.  [para 70]
  9. [para 84.3]

Let Earth Day Be About Ending Exploitation – Of People and The Planet

Kirsten Youens and Janice Tooley

By Kirsten Youens and Janice Tooley

This article appeared in the Daily Maverick on the 212 April 2022

As we observe Earth Day, KwaZulu-Natal is struggling to recover from the torrential rain that fell over 9 to 12 April resulting in the loss of 448 lives (so far) and wide-spread damage to service infrastructure and homes. Due to the extent and impact of the floods, the scale of the emergency and the response required, as well as the damage to infrastructure important to the country’s economy President Cyril Ramaphosa declared a national state of disaster, just two weeks after the two-year-long national state of disaster due to Covid 19 was lifted.

The latest Intergovernmental Panel on Climate Change (IPCC) report, released on 28 February, makes it very clear that increased heatwaves, droughts and floods are already exceeding plants’ and animals’ tolerance thresholds. “These weather extremes are occurring simultaneously, causing cascading impacts that are increasingly difficult to manage and they have exposed millions of people to acute food and water insecurity, especially in Africa.” Whilst we are shocked by the loss of life and damage caused by these recent floods, we have been warned for more than a decade now that climate change will result in more and more extreme weather events occurring. We have witnessed these events in other countries with increasing frequency, including those on our borders, especially Mozambique. 

Last week it was South Africa. Hundreds of people have lost their lives, and thousands, their homes. Many are still without electricity and potable water. Businesses have been destroyed, and with them, desperately needed jobs. It will take massive resources and months to rebuild infrastructure and even longer to address housing and service delivery backlogs to avoid similar disasters in the future. The death toll continues to rise. Our President said that “these floods are a tragic reminder of the increasing frequency of extreme weather conditions as a result of climate change. We need to increase our investment in climate adaptation measures to better safeguard communities against the effects of climate change.” It hardly seems necessary to have to look to the IPCC report to know that climate change is a grave and mounting threat to our wellbeing and a healthy planet.  Hoesung Lee, Chair of the IPCC said that the “report is a dire warning about the consequences of inaction  … Our actions today will shape how people adapt and nature responds to increasing climate risks.” 

In anticipation of the climate crisis our government drafted a Climate Change Bill in 2018 which was tabled before the National Assembly on 18 February 2022. Unfortunately, all the while the Minister of Minerals and Energy, Gwede Mantashe, has continued to push his fossil fuel agenda and careen headlong down the coal carriageway, seemingly oblivious to the fact that coal is the single biggest contributor to anthropogenic climate change. 

As of now, our climate and environmental justice law clinic, All Rise, is opposing an existing open cast coal mine and its expansion, three open cast coal prospecting applications and appealing the environmental authorisation of an underground coal mine – totalling hundreds of square kilometres in northern KwaZulu-Natal. Yes, in the same province that is under unprecedented amounts of water, drowning in mud and wash-aways. And yes, all being considered and approved by the same government that professes to acknowledge that the climate emergency is upon us and is a signatory to the Paris Agreement.

Not only is the phasing out of fossil fuels necessary if we are going to meet our emission reduction targets for greenhouse gases, but climate change is also about adaptation and resilience. There are people living in these mining areas who are being exploited and made vulnerable to extreme weather events as a result of having had their land and water resources taken from them, as well as their food security, culture and dignity eroded. How are their rights being protected from exploitation and where do they feature in the discussion? What about the other vulnerable rural and urban communities throughout South Africa, including those affected by the recent flooding in eThekwini and surrounding areas?

On 22 April 1970 twenty million Americans gathered in the largest environmental demonstration in history: Earth Day. The environmental activists were  inspired by the anti-war and civil rights movements in the United States, including the civil rights efforts of Chicano and Indigenous activists and used the same strategies to spread awareness about conservation and the need for a healthy environment.  Arturo Sandoval, a leader in the Chicano civil rights movement was a member of the Earth Day organizing team. He saw it as an extension of his civil rights work and an opportunity to open the discussion of environmental action and conservation to a broader discussion about the impacts of exploitation “not just of the planet, but also of people – and to help people see it was basically one in the same issue.” [Mangan, Arty. “Earth Day, White Privilege and Decolonizing the Mind.”]  

Now, 53 years later, it is clear that we still need to have the broader discussions around the impacts of exploitation in the context of the communities who are bearing the brunt of unbridled capitalism and environmental injustice. These are the same people who are bearing the brunt of the climate crisis. To add to their risk, the increased environmental degradation and the resultant social inequality and inability to live off the land means they are being made less climate resilient and increasingly vulnerable. 

What is even more important than having the broader discussions is the urgent need for ongoing and increased action. Action to protect the planet and action to protect the people are one in the same. They are inextricably linked. In order to save the planet we have to actively seek the voices of those most marginalised.  For the sake of the Earth and for ourselves.  So, today, let us remember that Earth Day is about protecting each other, as much as it is about the protecting the environment and the planet.