What a busy year 2022 was. So much so that we have only managed to finish our end-of-year newsletter now. Here we highlight some of our work for you…
UNSUSTAINABLE COAL MINING PROJECTS & NEGATIVE EFFECTS
Most of our work this past year has again been focused on coal mining projects in KwaZulu-Natal and their devastating effects on communities and the environment.
Successful judgment against Tendele Coal Mining
For those following the long and arduous fight by the Mfolozi Community Environmental Justice Organisation (MCEJO) against Tendele Coal Mining (Pty) Ltd and its Somkhele open-cast coal mine in Mpukunyoni Traditional Authority near Mtubatuba, northern KwaZulu Natal, you most likely would have read about the judgment handed down on 4 May 2022.
The Court determined three main issues, namely: i) the defective Scoping and Environmental Impact Assessment (EIA); (ii) failure to obtain community consent as required by the Interim Protection of Informal Land Rights Act (IPILRA); and (iii) inadequate public participation.
While Judge Bam did not set the mining right aside, she did order Tendele to conduct proper public participation and submit additional information to the Minister of Mineral Resources and Energy to redecide the appeal. Essentially, this requires Tendele to redo the EIA process, starting with scoping. Scoping is a crucial part of an EIA because it identifies, through consultation, the issues that need to be further examined in the EIA, which, together with the mitigation measures in the Environmental Management Programme (EMPr), provide the information necessary for the Minister to make an informed decision as to whether the mining activity should be approved or not.
Tendele started the new scoping process approximately two months after judgment was given, appointing the same environmental assessment practitioner (EAP) who had conducted the first flawed process. MCEJO’s major concern with this renewed EIA process was that the EAP relied on the Mpukunyoni Traditional Council to distribute notices and organise the community meetings – the very same leadership who is a respondent to the court case is publicly anti-MCEJO and has been intimidating our clients over the past few years.
Threats and attacks have become part of life in many mining-affected communities around South Africa. According to the Global Initiative against Transnational Organized Crime, in KwaZulu-Natal alone, more than 50 mining-related killings and attempted killings occurred between 2016 and 2020, often related to land issues and conflicts with the traditional authority.
Our clients’ objection to the role of the traditional authority in the EIA process was one of many issues highlighted in the 30 pages of comments that we submitted on the draft scoping report on 1 September 2022. We also raised a number of procedural and substantive deficiencies, such as withholding of information, limiting notification to those residing within a narrowly defined “zone of influence,” unclear maps and fence lines, missing project details about job creation and the full extent of the project, and flaws in the resettlement scheme.
A day later, on 2 September, the appointment of a new EAP (OMI Solutions) and public participation consultant (WSP) was announced. Although our clients were promised further consultation, the scoping phase has yet to resume. It is now more than eight months post-judgment, and Tendele seems no closer to fulfilling the EIA and public participation components of the judge’s order despite having expressed its long-stated urgency to start mining as soon as possible. Our repeated requests for updates from OMI, WSP and Tendele’s attorneys go unanswered.
Tendele, in the meantime, has claimed to have obtained community consent in terms of the Interim Protection of Informal Land Rights Act. However, again these meetings were organised and held by the traditional leadership, and we know the process to be defective, resulting in consent that is neither informed nor free.
Coal mining project EIA processes
Last year we also participated in the EIA process and submitted comments for the following coal mining projects in KZN:
- Prospecting application for additional mining areas by Tendele as an expansion to the existing Somkhele Coal Mine.
- Prospecting application by Imvukuzane in the Fuleni Reserve on the south-eastern boundary of the Hluhluwe-iMfolozi Park and south of Tendele’s Somkhele Mine, Area 1.
- Prospecting application by Yengo Resources (Pty) Ltd) in the Ximba Traditional Authority area on the southwestern boundaries of the Hluhluwe-iMfolozi Park.
Psychological Trauma Report and Webinar
On 25 October 2022, All Rise held a webinar and released a report entitled ‘Everything for Dust: the Collective Trauma of Opencast Coal Mining on Residents in Somkhele, KwaZulu-Natal’.
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 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 little at all in South Africa is the psychological impact of coal mining on mining-impacted communities.
The study was done with a view to creating awareness about a very hidden aspect of mining impacts on surrounding communities and was the first step in finding help for our clients. The report’s findings were shocking, with most of those interviewed suffering from PTSD, depression and collective trauma. They are also suffering from institutional trauma – trauma brought about by suffering at the hands of the very institutions that are supposed to protect them.
Importantly, it was not a study simply for the sake of a study (we call this kind of research “research extractivism” and frown on it). When given feedback, the participants said that the findings made them feel relieved, validated and heard. It is also the first step in finding solutions to ongoing trauma and helping our clients heal.
Ongoing Community Support
Lihle Mbokazi, All Rise’s Community Liaison Manager, is a very valuable member of the team. She is in constant communication with MCEJO members and assists them in getting legal support from All Rise and security support from SAHRD and Frontline Defenders when necessary. Lihle supported Dr Barnwell and our clients during the research for the Psychological Impact study.
During 2022 we held eleven community meetings with MCEJO as well as a one-day workshop on cultural heritage presented by Dr Dineo Skosana, SWOP, a two-day workshop on EIAs presented by Janice, Lihle and Bathabile Msomi from eThekwini Municipality and IAIAsa, and a workshop where Dr Barnwell presented the findings of the Psychological Impact study presented.
We have taken over the mandate from Richard Spoor Inc. to represent several families that Tendele has identified as needing to relocate to make way for the new mining operations, as well as a number of families who have been inexplicably excluded from the resettlement process.
Murder of Mam’Fikile Ntshangase
We are in regular communication with SAPS about the continuing investigation into Mam’Fikile Ntshangase’s murder in October 2020. We are certain that an arrest (and subsequent successful prosecution) is not far away. It takes time to build an air-tight case, and we have faith that Fikile’s killers will be brought to justice.
Highlighting the Risks of Environmental Defenders
A documentary film about Fikile, her daughter and the struggle to defend their land against mining had its premiere screening in the community in November. It is called The Gooseberry Granny’s Daughter and is by Julie Laurenz. It was received well by our clients in Somkhele, and we hope it will be available for public viewing soon.
On 17 May 2022, a 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” was put into the public domain.
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 2022 Pretoria High Court ruling that Tendele Coal Mining’s application for a mining right (to expand its Somkhele operations) failed to comply with the law and that the decision of officials in the Department 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.
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.
STRATEGIC LITIGATION AGAINST OTHER UNSUSTAINABLE LARGE-SCALE PROJECTS
Successful judgment in the Shell and Impact Africa case
On 1 September 2022, the High Court in Makhanda ruled that Shell’s exploration right to conduct seismic surveys for oil and gas on the Wild Coast of South Africa was unlawfully granted and therefore set it aside. 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 joined the application and were represented by environmental law firm Cullinan and Associates.
The court has subsequently granted Shell and the DMRE leave to appeal, and we expect that the appeal will be heard by the Supreme Court of Appeal sometime this year.
Review Application filed against the Environmental Authorisation for the Musina-Makhado Special Economic Zone (MMSEZ), Limpopo
On 14 December 2022, All Rise launched review proceedings against the Environmental Authorisation for the giant metallurgical complex in Limpopo on behalf of our clients, Living Limpopo, the Herd Nature Reserve and the Centre for Applied Legal Studies (CALS).
This Special Economic Zone (SEZ) was first proposed in 2017, with the Limpopo provincial government identifying two sites to the north and south of Musina for development and industrialisation. The MMSEZ is expected to consume as much as 10% of South Africa’s carbon budget over its lifetime, and the scale of the project has the potential to radically affect the environmental, social and economic landscape of the region.
Several organisations – including All Rise, Living Limpopo, CALS and others – have consistently raised concerns about the impacts of the MMSEZ and attempted to engage in the public participation process around the environmental authorisation without success. Even an initial Environmental Impact Assessment conducted by Delta Built Environment Consultants, and commissioned by LEDA, did not recommend granting authorisation without several deficiencies being first addressed. This did not stop the Limpopo provincial government from requesting another environmental assessment practitioner ‘update’ the report before granting itself authorisation in February this year.
CALS and All Rise, along with many other organisations promoting environmental justice, brought internal appeals against the decision to grant the environmental authorisation. All of these appeals were dismissed in July last year. We have thus approached the High Court in Polokwane to review and set aside the environmental authorisation and the decision to dismiss the appeal. We argue that the EIA process, appeal, and public participation processes were procedurally unfair and failed to properly consider the impacts on climate change and water security.
The review application includes two expert reports. The first, by Dr Louis Snyman from CALS, examines the potentially devastating consequences of constructing such an extensive development without proper spatial planning. These include worsening already ageing infrastructure and water supply problems, droughts, flooding, pollution and wetland destruction. The second from Dr Victor Munnik focuses on the water requirements of the MMSEZ, which will exacerbate existing water issues.
Read more in the founding papers here.
EMPOWERMENT, EDUCATION AND TRAINING
Climate Change Awareness and Community Collaboration
We are excited to be working with a dynamic and visionary Inkosi (chief) of the Mpungose Traditional Authority and his community outside Eshowe, KwaZulu-Natal, through the foundation he has established, the Bekezela Community Foundation. This collaboration aims to foster climate education and justice, sustainable development and helping to ensure community voices are heard in the climate context. The pilot workshop was held in October to develop a community-driven climate change manifesto, and it was amazing to work in an environment where teachers, school children, headmen, farmers, and professors from the University of Zululand all came together to learn and share ideas. Magic happens when visionary leaders collaborate with others for the greater good. Details of this collaboration will be shared very soon!
Another exciting initiative is the collaboration with IAIA and IAIAsa to develop an EIA guide in isiZulu and Workshop Training Manual for EAPs and communities. Unfortunately, we have experienced some delays in getting these deliverables completed but expect to launch the Guide with IAIAsa in the early part of this year.
We have already mentioned the EIA and cultural heritage training workshops we held for our MCEJO clients during the course of last year. While we are a small team and cannot help everyone who asks for our help, we can share resources. We plan to develop further community-friendly guides in African languages to have a much larger reach and empower communities to challenge government agencies and the private sector that violate their constitutional rights and don’t comply with the various environmental laws.
ON A HAPPY NOTE
The All Rise team was humbled by a ceremony by our clients in Mpukunyoni to thank us for the work we do for them. We were presented and adorned with traditional Zulu regalia and carved animals to represent each of us. The women took us aside and dressed us, and we were then sung and danced into the community meeting. The men and women were all in on the surprise and giving of our special gifts and speeches. Of all the days this year that stood out for us, this was it. To be appreciated in such a beautiful, strong and caring way is certainly very humbling but also validating. We are so encouraged by our clients and their courage and tenacity.
In November, Kirsten Youens was invited to speak at the 2022 Southern Africa Human Rights Defenders Summit in Lusaka on 28th and 29th of November. Kirsten presented on the panel discussion around Leveraging global perspectives to improve the situation of Land and Environmental Defenders and Climate Justice activists in Southern Africa and discussed the approaches that are improving the situation of land and environmental defenders and climate justice activists in South Africa during 2022. These she distilled into three categories: Access to justice, collaboration and progressive leaders.
It was wonderful to see friends made last year and to meet other inspiring defenders from Southern Africa. We always leave feeling encouraged and supported by a tribe of people doing their best to make a difference in the world.
Lihle was awarded the Mail and Guardian Greening the Future Award! Lihle, an integral part of the All Rise team, is a dedicated conservationist, activist and advocate for environmental issues. She made history in 2005 when she became the first woman of colour to earn a Wilderness Guide certification from the Wilderness Leadership School. Outside of her role as liaison manager at All Rise Attorneys, she has volunteered for groups such as Earthlife Africa, EcoPeace and the Wilderness Action Group, as she has always had a love for the outdoors. “My volunteer work entailed conserving and saving the environment, ecosystems and wilderness,” she says.
Greening, The Future is an annual environmental awards event in South Africa that recognises 40 winners in 9 environmental and sustainability categories. Greening the Future was launched by the Mail & Guardian in 1998 and has been an annual celebration of environmental and sustainability trailblazers and heroes ever since.
Kirsten 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 in August. WOZA AWARDS are annually presented to women lawyers in Africa in recognition of their outstanding dedication, achievements and contribution to the profession, whether its services, legal education, human rights or the pro bono sector.
We look back on 2022 with gratitude to all those who support us, our clients whom we do this for, and the successful collaboration and partnerships with other law clinics and community leaders that allow for creativity, learning and achievement.
Here’s to a busy and successful 2023.
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.
Our organisations have approached the High Court in Polokwane to review the environmental authorisation granted in respect of the heavy industrial development site of the Special Economic Zone located in northern Limpopo. We argue that the process was fatally flawed, with the provincial government granting itself environmental authorisation while ignoring severe impacts of this coalfuelled mega-project on water security and the climate crisis.
The Herd Nature Reserve, Living Limpopo and the Centre for Applied Legal Studies(CALS), represented by All Rise Attorneys for Climate and Environmental Justice, have launched a review application in the High Court in Polokwane. Our organisations are asking the Court to review and set aside anenvironmental authorisation which relates to the major development site of the Musina-Makhado Special Economic Zone, also known as the MMSEZ.
The Special Economic Zone was designated in 2017, with the Limpopo provincial government identifying two sites to the north and south of Musina for development and industrialisation. The operating entity, the MMSEZ SOC (state-owned company), is wholly owned by the Limpopo Economic Development Agency (LEDA) – an agency of the same provincial government department responsible for granting environmental authorisation. The MMSEZ is projected to generate over one billion tons of CO2e over its lifetime, or more than 10% of South Africa’s annual carbon budget under its Paris Agreement commitments. The scale of the development has the potential to radically alter the
environmental, social and economic landscape of the Vhembe Biosphere Reserve region, and the risks demand considered decision-making around environmental authorisation.
Many organisations – including All Rise, Living Limpopo and CALS – have repeatedly raised concerns about the feasibility and impact of the MMSEZ on this sensitive region and its vulnerable rural communities. Efforts to engage meaningfully with the government agencies sponsoring the project through the public participation process have proved futile. The final Environmental Impact Assessment (EIA) Report issued in February 2021 by Delta Built Environment Consultants did not recommend authorisation. In spite of this, the Limpopo provincial government proceeded to appoint another environmental assessment practitioner to issue a revised final EIA Report in September 2021, which paved the way for it to grant itself authorisation in February 2021.
CALS and All Rise, along with several other civil society organisations promoting environmental and social justice, brought internal appeals against the decision, all of which were dismissed in July last year. We have therefore approached the High Court to review and set aside the environmental authorisation and instead uphold our appeal. We argue that the EIA, appeal, and public participation processes needed to be more procedurally fair and properly consider the impacts on, amongst other things, climate change and water security.
The review application includes two expert reports. The first, by Dr Louis Snyman from CALS, examines the potential devastating consequences of such a high-impact development without proper consideration of spatial planning. These include the loss of biodiversity, worsening already aging infrastructure and water supply problems, droughts, flooding, pollution and wetland destruction. The second report from independent political ecologist, Dr Victor Munnik, focuses on the dangerous impact of the water supply plans to meet the vast water requirements of the MMSEZ in this already water-stressed region.
“The Vhembe region contains some of the most biodiverse and culturally sensitive areas in the country, including the northern Kruger National Park, Mapungubwe World Heritage Site and other areas like the Herd Reserve, which are largely unprotected,” says Dr Louis Snyman, head of Environmental Justice at CALS. “This is already a water-scarce area, and failing to properly consider spatial development could have devastating consequences.”
“Living Limpopo took to the street markets of Thohoyandou to speak to the people who trade in indigenous natural commodities wild-harvested in the area around the MMSEZ, as well as to smallholder farmers and people living in nearby villages,” says Lauren Liebenberg. “Few had even heard of the MMSEZ. Those who had were sceptical. All want their voices heard. The Vhembe is our birthright. It has been sold without permission.”
“The right to an environment that is not harmful to health or wellbeing is guaranteed in the Constitution,” says Kirsten Youens from All Rise. “This is not only about protecting the physical aspects of the environment but the social, cultural and spiritual attributes. The MMSEZ is a massive development that will extensively impact all aspects of the environment. It will result in a severe setback to efforts to fight the climate crisis and render South Africa in breach of our international obligations.”
We thank Legal Aid South Africa for their financial support in this matter, in funding the review application.
For inquiries, please contact:
From the Centre for Applied Legal Studies:
• Louis Snyman (Head: Environmental Justice) on 083 355 6482 or at Louis.Snyman@wits.ac.za
• Robert Krause (Researcher: Environmental Justice) on 081 427 7818 or at
From Living Limpopo:
• Lauren Liebenberg (Campaigner) on 083 327 4784 or at email@example.com
From All Rise Attorneys:
• Kirsten Youens (Chief Executive Director) at firstname.lastname@example.org
• Janice Tooley (Executive Director) at email@example.com