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.

Read more in Daily Maverick:  Tendele coal mining sends in the bulldozers in rural KZN before crucial high court interdict ruling

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