Somkheles residents have decided to take their case to the Supreme Court of Appeal after a high court ruling went against them in their battle with Tendele Coal Mining. (Delwyn Verasamy/M&G)
The Full Gospel Church in Somkhele burst into song after a long meeting to discuss what to do after a high court judgment, which had ruled against their struggle with Tendele Coal Mining the day before.
Young and old rose to their feet, the power of their voices warming the chilly overcast day with the singing of Thina si lwela amalungelo ethu (We are fighting for our rights).
The 4 000 residents of 10 villages in KwaZulu-Natal’s Somkhele area, between Hluhluwe-iMfolozi Park and the town of Mtubatuba, began their battle with Tendele after it started mining there in 2007.
According to evidence submitted to the court, Somkhele has more than 50% of all open-pit mineable anthracite reserves in the country. Tendele is the principal supplier of anthracite in the country and sells 730 000 tonnes a year to local ferrochrome producers.
But the mining operations have been dogged by controversy and opposed by Somkhele residents, who say Tendele violates their environmental, land and traditional rights, and is negatively affecting a way of life that is based on crop and stock farming.
The residents, through the Mfolozi Community Environmental Justice Organisation, applied to the court to interdict the company from operating until it complies with all legal and environmental rights regulations.
But Judge Rishi Seegobin dismissed the application with costs because the applicants had not presented a proper case. He said they appeared to have adopted a scattergun approach, hoping to hit one target or another.
He said there was no evidence to suggest that the applicants had approached one of the respondents, Amafa KwaZulu-Natal Heritage Council, about the measures being taken regarding graves.
“The applicants’ complaints about traditional graves relate to Tendele’s historical conduct in relation thereto which, as I said, Tendele has openly admitted to,” said Seegobin.
Tendele was working closely with Amafa to ensure that any relocation of graves took place in accordance with the law, he said.
“The applicants have simply failed to put up cogent evidence to support their contentions that Tendele is mining unlawfully without the requisite authorisations, environmental or otherwise,” Seegobin said.
Kirsten Youens, a lawyer for Somkhele’s people, said the judgment was a huge disappointment.
“I have my faith in the judicial system. I trusted the judicial system to find in favour of the people. At the same time, I’m incredibly proud of my clients. I think they took it better than I did,” she said after the meeting at which she reported on the ruling to the residents and at which she sought a mandate to challenge the ruling.
Youens said they were planning to lodge an appeal in the Supreme Court of Appeal.
She also said a second application had been launched in the high court in Pretoria to reverse a decision to grant Tendele an extension to its mining licence, which includes another 200km2 extending close to the Hluhluwe-iMfolozi Park.
In court papers for the case dismissed by Seegobin, the applicants Global Environmental Trust, Mfolozi Community Environmental Justice Organisation and Sabelo Dladla, said Tendele was acting illegally because it had no environmental authorisation for the mining.
The respondents in the matter included the minister of minerals and energy, the MEC for economic development, tourism and environmental affairs, the minister of environmental affairs, the Mtubatuba and Hlabisa municipalities, the Ingonyama Trust, Ezemvelo KZN Wildlife and Amafa.
The applicants also said Tendele Coal was mining without land use authority or the approval of any municipality, and had no written approval in terms of section 35 of the KwaZulu-Natal Heritage Act 4 of 2008 to remove or alter graves. They also accused Tendele of operating without a waste management licence.
Tendele argued it did not require environmental authorisation in terms of the National Environmental Management Act because its operations were in accordance with valid mining rights and environmental management plans granted and approved by the department of mineral resources before legislative amendments in December 2014.
It also said its mining operation predated the introduction of mining as a land use, requiring municipal approval, and the introduction of the relevant legislation provided for the continuation of lawful, historical mining operations, such as those undertaken by it. In any event, it had acquired municipal approval for its operations.
Tendele accepted it had previously altered or removed graves without being in possession of the necessary authorisation, but there was no risk that it would do so in future without approval and accordingly there was no basis for an interdict.
Youens said the grounds for the high court application were that the expansion of an open-cast coal mine on the border of the Hluhluwe-iMfolozi Park would result in unacceptable pollution, ecological degradation and damage to the environment.
Thembinkosi Mkhwanazi, of the emaSwazini traditional authority, said Tendele had misled Somkhele’s residents when it took over their grazing lands.
The company allegedly claimed they had no right to the land because it belonged to the Ingonyama Trust.
Mkhwanazi said he lived 9km from the mine, yet he was affected by the dust.
“People here survive by ploughing and keeping livestock. Now the mine has taken over grazing lands. People no longer have land to plough and grow their own food,” he said.
One of the adverse effects of the mine was the pollution of water sources.
“People use tanks to capture rainwater. The dust from the mine is everywhere. When people harvest rainwater from the roofs, they drink all that dust. Even when you slaughter cattle, you find coal deposits in their bellies,” he said.
The residents have resolved to support the decision to appeal the case.
One of the speakers at the meeting, which was attended by at least 100 people drawn from the affected area, said: “If you go into a boxing ring, you prepare to fight a number of rounds — one, two, three, up to five. This is just round one. We are still going to fight.
“It will take us a long time, maybe up to round 12, but we will fight.” — Mukurukuru Media