Our Burning Planet

COURT RULING

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

‘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)

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.

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 MaverickTendele 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

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Comments - Please in order to comment.

  • virginia crawford says:

    Judge Nolunthu Bam compares Tendele to an “unbridled horse” and then gives them a second chance: why and on what grounds? All the bulldozers etc should be confiscated and held until damage to the land has been repaired. A coal mine in 2023? WTH.

  • Ian McGill says:

    The great excuse (lie) that all these small mining companies tell is the number of jobs that will be created. These companies already have their own work force -LHD drivers, grader operators, blasters and so on. The claim of up to 1600 jobs is a total fabrication. This number usually goes into the Mining Plan as part of the Mining Right application and is never challenged by the DMRE. Even if were an underground operation the work force would never get to that number claimed. There is a thing called “mechanisation”.

  • Roslyn Cassidy says:

    Oh my goodness, these fossil fuel companies have no shame. That guy at the Earth Gathering from the company that’s about to drill for gas off the coast of Namibia (and maybe off the coast the Northern Cape too) didn’t read the play at all. To justify what the company wants to do he talked about the billions of dollars in revenue that would be gained. Money isn’t the only objective in life, dude. The planet is priceless. Yes, we need peaking power (that which is ONLY needed at peak time) but we already have Karpowership coming in to provide that – for a crazy 20 years when we need it maybe for a max of 5 years. So heaven help those sea creatures who’s existence will be altered substantially by the running of engines for 24 hours out of every 24). One of the speakers at that Earth Gathering (which was excellent BTW) talked about the revenue that the South African natural environment brings in, just by being itself, and how many jobs it already sustains – something like 1.2 million. So the seals and sea creatures that already give us jobs will be giving more by having to live with underwater noise, diesel pollution etc. Not to mention that the 3 ships will take up space that will mean that Coega cannot expand the port. Honestly, it’s all a kind of madness.

  • Robert Douglas says:

    Obviously DM can only perform as well as permitted by its subscribers ; in our Western society most services depend upon cash flow which grease the wheels ,& feed the operatives. I ask myself where are the likes of those large consumer stores , like Pick n Pay, Checkers, Spar , Checkers & Makro , to name but ? Surely it should suit their business models & fit within their advertising budgets to spend several million a year with DM? In addition to which surely these stores need to be seen to be taking a stand , not necessarily taking sides , in seeing better government ? Why are they invisible as if afraid they might harm their businesses , instead of realising that good fortune favours the brave !
    Personally I would prefer to be shopping at a store that shows some guts particularly in these tough times .
    Come on guys !

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