2021 has been a challenging year for ALL RISE and our clients as we have continued to navigate the Covid-19 pandemic on top of all the usual challenges faced in the public interest law space.
With our small but dedicated team we are very proud of all we have accomplished this year and take this opportunity to thank all those who support us and our clients in working towards environmental and climate justice.
Reflecting on 2021, we would like to share our highlights, struggles and direction for next year.
Strategic litigation on behalf of mining-affected communities
Our main focus has again been strategic litigation against Tendele Coal Mining (Pty) Ltd which we initiated on behalf of MCEJO and GET, firstly in 2017, in an application for an interim interdict, and secondly, in 2018, in a review application of the mine’s 2016 mining right to significantly expand its current open cast coal operations.
In respect of the first case, the interim interdict, we filed an application on 8 April for leave to appeal to the Constitutional Court (“Constitutional Court Appeal”) againstthe majority judgment of the Supreme Court of Appeal requiring the Constitutional Court to provide finality on whether environmental authorisation is required for mining activities applied for and authorised under the MPRDA before December 2014. We also seek the Constitutional Court’s correction of the High Court’s costs order and the chilling effect it will likely have on public interest litigation. We hope to be allocated a court date in the second quarter of 2022. We would like to extend our gratitude to Advocates Tembeka Ngcukaitobi SC and Mawande Mazibuko for all their hard work on this case.
The second case, the application to review and set aside Tendele’s 2016 Mining Right based on its wholly inadequate EIA and consultation process was at last heard on 10 to 12 November, after no less than 5 postponements.
In one of its many attempts to halt the court case, Tendele filed a second Rule 7 application in December 2020 disputing Youens Attorneys’ mandate, which it withdrew only after a challenge was brought by a group of six suspended MCEJO members in early February of this year asking the Court to declare Youens’ mandate terminated and to have the review application withdrawn.
Notably, the hearing of the main application in March was scuppered to make way for this spurious challenge by the MCEJO splinter group which was rightfully dismissed. At the same time, ALL RISE successfully applied to the court to grant four new applicants permission to intervene and join the proceedings, and in doing so, gained four new clients -the Global Environmental Trust (GET), Mining Affected Communities United in Action (MACUA), the Southern Africa Human Rights Defenders Network (SAHRDN) and ActionAid South Africa, all of which have a long association with the members of MCEJO in the Somkhele community supporting them in their fight against the environmental and social injustices.
The matter was complicated further when Tendele supplemented its papers in March essentially conceding that the mining right was invalidly granted and undertaking to abandon all but 17.66 km2 of the original 212km2 . Nonetheless it sought to retain the three mining areas of Ophondweni, Emalahleni and Mahujini which it said are necessary to save the mine from closure. Tendele also wanted the court to order that these three areas go back to the Minister to reconsider the original administrative appeal, this time with the numerous additional studies Tendele completed in late 2019 and early 2020 and any comments that interested and affected parties may submit.
However, the Applicants argued that in addition to the flaws associated with the original EIA studies and public participation process, the size of the retained three mining areas of Ophondweni, Emalahleni and Mahujini are 45% larger than initially assessed. This is particularly so for Mahujini which is now five times its original size. The approximately 27 new studies conducted in 2019 and 2020 are also flawed for varying reasons and the overwhelming majority having been undertaken without any public participation. Thus, any consultation as part of a second round of the appeal would be insufficient. The more appropriate remedy is for the mining right be set aside and the process to begin afresh to identify and address the impacts and community concerns properly. The other issue in dispute is the lack of free, prior and informed consent in terms of the Interim Protection of Informal Land Rights Act, 1996 (IPILRA), and its effect on the original granting of the Mining Right.
Judgment was reserved after the application was heard in November and we anxiously await the outcome. We are extremely grateful to our Advocates Anna-Marie de Vos SC and Louise Ferreira for the long hours they put in settling the papers and arguing on behalf of the Applicants.
We also joined as co-applicants in a second urgent application for an interdict against SHELL and IMPACT AFRICA joining Sustaining the Wild Coast (SWC), together with the Dwesa-Cwebe Communal Property Association, fishermen – Ntsindiso Nongcavu (Port St Johns), Sazise Maxwell Pekayo and Cameron Thorpe (Kei Mouth) – Amadiba traditional leader and healer Mashona Wetu Dlamini in applying for an urgent interdict against Shell’s seismic survey off the Wild Coast. The matter was heard on 17 December and judgment has been reserved. In this matter, we are represented by another strong legal team consisting of the Legal Resource Centre, Richard Spoor Inc. Attorneys as well as Advocates Tembeka Ngcukaitobi SC and Emma Webber.
Administrative action
Litigation is lengthy and costly and it is not the panacea to all fights against injustice. As our courts have held, it is a last resort and internal remedies should first be pursued. These include appeals against various licences that have been issued to companies despite extreme adverse impacts, inadequate mitigation and lack of consultation with affected parties.
We have spent a large part of 2021 participating in appeal processes:
- ALL RISE is representing MCEJO and GET in appealing Tendele’s water use licence for 142 water uses related to its existing and new mining operations. The appeal was filed on 3 November 2021 and suspends the licence unless the Minister directs otherwise. Among the numerous grounds of appeal, are lack of landowner consent, lack of consultation with the local residents, in particular the rural subsistence farmers in the area who rely on water to sustain their land-based livelihoods and numerous shortcomings in the technical report on which the decision to grant the licence was made.
- ALL RISE is also representing MCEJO and GET in an appeal filed on 7 December against the decision granting Tendele a waste management licence for the disposal of slurry and mine discard into the KwaQubuka pit. The grounds for the appeal include incorrect listed activities having been applied for and authorised and an EIA that fell short of the technical, reporting and consultation requirements prescribed by the EIA Regulations, 2014, the National norms and Standards for the Disposal of Waste to Landfill and the Planning and Management of Residue Stockpiles and Residue Deposits, 2015.
- ALL RISE also submitted an appeal on behalf of GET, of the environmental authorisation granted to Zululand Anthracite Colliery, also operating in northern KwaZulu-Natal (not far from Tendele’s Somkhele mine) to expand its operations and open a new adit to access additional underground coal resources. The adit is directly adjacent to Masokaneni village and yet the residents have not been adequately consulted. ALL RISE has also assisted community members in submitting their own appeals.
Community Support
Being parties to litigation in a community torn apart by mining is not easy for our clients to say the least. Lihle Mbokazi, ALL RISE’s liaison manager is in constant communication with MCEJO members and assists them in getting legal support from ALL RISE and security support from SAHRDN and Frontline Defenders when necessary.
Trauma counselling is provided to people who have been victimised and intimidated as well as to those who have suffered loss as a result of living in a mining affected community.
We believe in frequent contact with our clients to keep them updated and reassured and in addition to one-one-one contact we were able to hold eleven community meetings with MCEJO during the year.
Defending the defenders
More than a year on, we mourn the death of Mam’FikileNtshangase, one of our incredibly courageous and outspoken members of MCEJO who was brutally murdered for her opposition to the mine, especially as those responsible have not been apprehended. In this regard, we are in regular communication with the police service and continue to explore options with Mary de Haas (violence monitor for KZN) and other public interest groups in the call for justice for Mam’Fikile as well as to prevent further violence against other defenders.
This year, in honour of Mam’Fikile, and on the anniversary of her death, ALL RISE, in collaboration with Global Witness, held an international webinar to raise awareness of the risks of Environmental Defenders faceaptly titled “Defending the Defenders”.
The event was facilitated by Simphiwe Sidu, Regional Legal Advisor of Southern African Human Rights Defenders Network with a formidable line up of speakers:
- Kirsten Youens, Chief Executive Director of ALL RISE
- Mary Lawlor – United Nations Special Rapporteur on the situation of human rights defenders. Founder of Frontline Defenders
- Rowan Williamson – Inspire Dialogue Foundation Trustee, the former Archbishop of Canterbury, and retired master of Magdalene College, Cambridge University
- Arnold Tsunga – Chairperson of Southern Africa Human Rights Defenders Network. Country director for National Democratic Institute in Zimbabwe.
- Mary de Haas – Interventionist human rights worker and violence monitor in KwaZulu-Natal, South Africa.
- Louis Wilson – Senior Communications Advisor, Global Witness
The webinar was attended by 95 people from around the world and the feedback from the participants was very encouraging. We hope to have more of these webinars in 2022.
Holding funders accountable
On behalf of its clients, ALL RISE has very recently written to Nedbank asking it to explain why it has funded and continues to fund Petmin’s and Tendele’s Somkhele open cast mine when this project does not comply with Nedbank’s own environmental and social policy or the various international standards to which the bank subscribes. In particular, this is in respect to involuntary resettlement and significant environmental pollution and degradation which severely impacts on local communities and their livelihoods, and erodes their resilience to climate change. We have also asked Nedbank to reassess this project in light of our submissions. We await Nedbank’s response.
Education, Training, and Empowerment
Part of our vision is to share knowledge and make law accessible to people in their mother tongue so that access to justice can be truly realised. To this end we organised two very successful workshops and are in the process of preparing training material that are the beginnings of exciting things to come:
- EIA guide in isiZulu and Training Manual for Environmental Assessment Practitioners
A two-day workshop was held with 40 residents from four rural communities, mostly MCEJO members in March 2021 at which participatory training was provided in isiZulu on Environmental Impact Assessment (EIA). The interactions and feedback provided at the workshop are being used to develop a guide to EIA in isiZulu as well as a training programme (methodology and material) on EIA, both of which will be made freely available to environmental consultants, NGOs and communities.
- Land rights and mining-related impacts
A two-day workshop in isiZulu was held in August 2021 for 90 MCEJO members to empower people about their land rights, and identify coal-mining related impacts they experience to share with other residents in new areas where coal mining is being proposed. An expert on land rights, Mr Sithembiso Gumbi was invited to speak and answered many questions about rights over land falling under the Ingonyama Trust Board. Role-play and participatory community mapping exercises were also used to encourage maximum participation. We are currently producing an audio-visual clip on land rights in isiZulu so that this knowledge can be freely and widely shared with other MCEJO members and communities.
Lihle Mbokazi, our liaison manager was very fortunate to attend the Centre of Environmental Rights’ annual Environmental Rights and Remedies for Activists training course. Lihle had nothing but praise for the six week course and will be using the knowledge she gained to empower herself and share this knowledge with our clients. With an MCEJO member who also attended, they are together currently working on such a training programme. Once conceptualised, we will be looking for funding to roll it out.
Sharing our experiences
We have deliberately focussed this year on providing a full range of legal services and support to fewer clients rather than spreading ourselves too thin. However, to expand our reach, it is important to share our experiences and knowledge. In addition to the printed and audio-visual material we have already mentioned, we also believe it is important to participate in global, regional and national events both to share what we are doing and to learn from others. Kirsten Youens had the honour of being invited to speak at two important events this year.
- The Public Interest Law Gathering on 14 October where the topic was A RIGHTS-BASED GREEN RECOVERY POST COVID-19: Where legal and policy efforts to further Animal Wellbeing, Social Justice and a Healthy Environment meet. Kirsten spoke about the wildlife trade, pandemics and the need to stop unsustainable exploitation of the environment – both for the prevention of future pandemics and the upliftment of the morality of humankind.
- The 2021 Southern Africa Human Rights Defenders Summit held in Maputo Mozambique on 2nd and 3rd December. Kirsten presented both in a side panel session on environmental defenders and in the plenary session on a panel for woman human rights defenders. It was a wonderful opportunity to meet the inspiring defenders from Southern Africa, to learn from each other and to collaborate to ensure that the incredible work done by individuals and public interest organisations in this field continues.
It is truly a privilege to work with Animal Law Reform and SAHRDN and we look forward to further collaboration in the future.
In closing
We close our offices for the year knowing that we have worked hard to lay a solid foundation for 2022 and beyond, as we continue to grow, learn, share and act …. and make a difference.
May 2022 bring us all a year of victories that address the inequities, give power back to the people and stop the environment from being treated as a mere exploitable commodity.
For now though, we wish you a good long rest and peaceful time with loved ones.
Appreciatively,
Kirsten, Janice and Lihle.
