Coal Mining on the southern boundary of iMfolozi

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[Lisbeth]

COAL VS COMMUNITIES

Tendele Coal Mining sends in the bulldozers in rural KZN before crucial high court interdict ruling



One of the many homesteads on the fence line of a Tendele open-cast coal mine near Mtubatuba. (Photo: Rob Symons)

By Tony Carnie | 23 May 2023

Residents allege Tendele is acting unlawfully and appears to be breaching the spirit of previous undertakings to hold off on any ‘mining or related activities’ until a court case has been resolved.
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Barely two weeks before a crucial court case that could decide the future of the Tendele Coal Mining company, a bulldozer and other heavy earthmoving machinery have started to break ground on a hotly contested patch of community land in rural KwaZulu-Natal which the company hopes to mine for anthracite.

However, several residents — who stand to be evicted from their ancestral homes to make way for Tendele’s three proposed new mining pits close to the town of Mtubatuba — are set to launch a second urgent high court interdict on Wednesday, May 24, unless the company provides a cast-iron assurance that it will halt any mining or earthmoving activity (including access roads) immediately.

The residents, under the flag of the Mfolozi Community Environmental Justice Organisation (Mcejo), allege Tendele is acting unlawfully and appeared to be breaching the spirit of previous undertakings to hold off on any “mining or related activities” until the Pietermaritzburg High Court makes a final ruling on Mcejo’s first interdict application against Tendele.

Mcejo’s first urgent interdict was lodged in court on March 6 and was due to be heard on April 4. However, following subsequent legal interventions by Tendele, the Mpukunyoni Traditional Council and two trade unions representing former mine workers, the case was pushed forward to May 18 and then June 9.

https://youtu.be/6XGk3wDzwvo

In a series of affidavits lodged with the court, representatives of the Petmin-controlled coal mining company have asserted that the company’s very future is at risk unless it can start mining immediately.

This was because Tendele was already heavily indebted to its financiers — including Standard Bank, Nedbank and the Industrial Development Corporation (IDC) — and stood to be liquidated before year-end unless the legal uncertainties around its mining could be resolved speedily.

According to Tendele, its current banking debts exceed R367-million and preference share debts top R1-billion.

The uncertainty around Tendele’s ability to extend mining operations around Mtubatuba and the Hluhluwe-iMfolozi Game Reserve has been brought into sharp focus by a series of recent court cases — most notably in a ruling last year in which Pretoria High Court Judge Noluntu Bam likened Tendele’s behaviour to that of an “unbridled horse” that showed little or no regard for mining and environmental laws.


Barely two weeks before a crucial court case that could decide the future of the Tendele Coal Mining company, a bulldozer and other heavy earthmoving machinery have started to break ground on a hotly contested patch of community land in rural KwaZulu-Natal. (Image: Supplied)

Attorney steps in

Late on Tuesday, after being provided with photographs and video footage of earthmoving activities near Emalahleni village, Mcejo’s attorney Kirsten Youens wrote to Tendele’s attorneys (Malan Scholes) urging Tendele to pull out the bulldozers until the high court made a final ruling about whether Tendele’s mining plans are legal.

Youens — who personally evacuated and relocated a local resident during the Covid lockdown after his life was allegedly threatened because of his opposition to the Tendele mining plan — said in her letter that the coal company had previously agreed to refrain from any mining-related activity until the court interdict was resolved.

“Unfortunately, it seems your client has opted to commence with mining and mining-related activities prior to the hearing of the interdict.”

She alleges Tendele was now acting unlawfully as a new access route being ploughed at Emalahleni had not been authorised in terms of environmental impact assessment regulations. The bulldozer sighted on May 13 was also operating in a water course, with no apparent authorisation.


Mcejo corresponence to Tendele. (Screenshot: Supplied)

In further correspondence to Tendele’s legal team late on Tuesday, Youens said she had been instructed to launch a further urgent court interdict against Tendele unless the company received an assurance by 10am on May 24 that the equipment would be removed.

Neither Petmin’s chief executive, Jan du Preez, senior Tendele manager Nathi Kunene, or Tendele legal representative Lia Bolz responded to Daily Maverick’s email queries sent at 4.44pm on Tuesday. Du Preez did not answer a subsequent phone call or WhatsApp message.

However, in previous letters to Mcejo, Tendele’s lawyers indicated that the company was still determined to build a “small access road” near Emalahleni village about 500m from one of its proposed mining pits and to “upgrade” a section of provincial road, subject to approvals from the Department of Transport. DM

[Lisbeth]

‘Remove your bulldozers,’ judge orders Tendele coal mining company


Now that coal deposits have been all but exhausted from this mining pit, Tendele hopes to open new pits near Mtubatuba. (Photo: Rob Symons)

By Tony Carnie | 28 May 2023

Rural residents in KwaZulu-Natal have scored another legal victory against the Johannesburg-based Tendele coal mining company, winning an interim court interdict that compels the company to cease bulldozing community land with immediate effect.
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A Pietermaritzburg High Court judge has ruled in favour of the Mfolozi Community Environmental Justice Organisation (Mcejo) and ordered Tendele to halt “all mining and mining-related activities” pending the outcome of a fresh round of legal hostilities set to resume on June 9.

The ruling was made by acting Judge Paul Wallis during an urgent court hearing on Friday, May 26.

The community group argued that Tendele had jumped the gun by sending bulldozers and other heavy earthmoving equipment on to community land last week before the legality of its mining plans was adjudicated in court.

Tendele (a subsidiary of the Petmin group) plans to dig three new mining pits, which would lead to dozens of families being evicted permanently from their homes and land near the town of Mtubatuba.

Mcejo has contested the plans in a series of court battles that began in 2018. Last year, Pretoria High Court Judge Noluntu Bam ruled that Tendele’s mining rights in the area were invalid and compared the company’s behaviour to an “unbridled horse” with little respect for the law.

Nevertheless, Bam gave the company a second chance to comply with environmental impact assessment laws and to obtain community consent in terms of the Interim Protection of Informal Land Rights Act.

But before this process was concluded, Mcejo argued, Tendele signalled its intention to start building roads and fencing off land in preparation for mining.

This prompted Mcejo’s attorney Kirsten Youens to lodge an interdict application in Pietermaritzburg earlier this year and seek assurances from Tendele that it would halt its operations until the legal issues were resolved.

Tendele initially agreed to hold off, but following a series of postponements until June 9, sent in a bulldozer and other equipment to start clearing access roads near Emalahleni last week.

‘Complete contempt of court process’

Youens argued in court papers that Tendele was acting illegally and undermining the court process.

“Tendele has acted with complete contempt of the court process, anticipating the outcome of the interdict application as being in its favour and proceeding with mining without compunction or consequence.”

If Tendele was allowed to carry on clearing land “the horse will have bolted, with no means to put it back into its stable”, she said in an affidavit.

Tendele, for its part, has argued that time is running out to pay its bank debts unless it can start mining immediately.

In a letter sent to Mcejo’s attorneys soon after a bulldozer arrived on site, Malan Scholes’ attorney Liz Bolz said that Tendele had only agreed to hold off until May 16.

“Your client’s assumption that our client [Tendele] would automatically extend its undertaking to June 9 is unfounded and unreasonable, especially in the circumstances where our client has repeatedly stated that it urgently needs to commence the mining activities at Emalahleni in order to save the mine.”

Bolz stated that Tendele intended to dig a new access road to the mine and also establish a fenced-off “hardpark” — a compacted area to store heavy mining vehicles and equipment. She stated that Tendele had received permission to build the road and hardpark “from the relevant stakeholders” and was committed to rehabilitating any disturbed land if the court subsequently ruled in favour of Mcejo.

She also stated that a group of Mcejo members had attempted to intimidate Tendele staff in the process of bulldozing the access road and warned that Tendele would not hesitate to call in the police if there were “any further acts of intimidation against our clients and its employees”.

These allegations come against a backdrop of the unsolved murder in October 2020 of local activist Fikile Ntshangase — who was strongly opposed to Tendele’s mining plans near her home in Ophondweni — as well as the burning of homes and alleged intimidation of several other anti-mining activists.

Tendele’s response
When Daily Maverick contacted Petmin chief executive officer Jan du Preez for comment on the latest legal ruling, he did not provide a copy of Tendele’s legal submissions to the court.

Instead, Tendele provided a press statement on a Petmin letterhead, along with a separate press statement by the Mpukunyoni Traditional Council, Tendele’s community forum on mining and two local trade unions — both supplied via Tendele’s public relations consultants, R&A Strategic Communications.

In the Tendele statement, signed by community development director Nathi Kunene, the company said Mcejo appeared to represent “a few hundred” people in a broader community of about 220,000 people, the majority of whom were said to support the mining.

“This temporary halt in operations has been met with concern and frustration from community members affected as reflected in the attached press statement by the community.”

Kunene said the company was determined to appear in court on June 9 to “demonstrate the lawfulness of Tendele’s operations and the importance of the mine to the local community and the national economy”.

The “community statement” circulated by Petmin consultants (listing attorney Dennis Sibuyi and Mpukunyoni Traditional Council mining forum spokesperson Mandla Sibiya as contacts) states: “While the community respondents respect the rule of law, the decision by the court in granting this interim interdict perpetuates the economic hardships that the directly affected communities have to endure, at the hands of an unknown minority grouping who cannot be verified to even reside in the area.

“The clock has been ticking for far too long. Our community requires jobs, and Tendele can provide up to 1,600 jobs. It is time for our community to rise from the ashes of despair and embrace the promise of a brighter tomorrow. May justice prevail and may the commencement of mining bring forth the dawn of prosperity for our community.” DM

[Lisbeth]

There is some misunderstanding of the law here. If the law has said that you cannot mine until .... etc. then you cannot and your bank account has nothing to do with this and is not a valid excuse to go against the law.