Our Burning Planet

COMMUNITY UNDER THREAT

Coal mining company sends bulldozers into KZN village before impact studies are finalised

Coal mining company sends bulldozers into KZN village before impact studies are finalised
A cluster of homes abandoned near the proposed mine pit. The terms of relocation agreements with affected residents remains unclear. (Photo: Supplied)

Residents of a village in northern KwaZulu-Natal fear being permanently removed from their homes and ancestral land as the mining company Tendele has already started laying the groundwork for three new mines — before the Environmental Impact Assessment and public consultation process have been finalised.

A large convoy of heavy earth-moving vehicles has rumbled into the rural village of Emalahleni in northern KwaZulu-Natal, carving away tonnes of soil and vegetation in preparation for new anthracite mining pits.

The fleet of excavators, bulldozers and dumper trucks has been labouring day and night for the past two weeks as the Johannesburg-based Tendele (Petmin) mining group races to lay the groundwork for three new mines in the area — even before the mandatory environmental impact assessment (EIA) and public consultation process have been finalised.

coal mining kzn village

A row of dumper trucks lined up outside the village of eMalahleni. (Photo: Supplied)

Tendele, which acknowledges that it is heavily indebted to banks and shareholders and faces liquidation, has been itching to break ground here for several years — but has been restrained by a series of court actions by the Mfolozi Community Environmental Justice Organisation (Mcejo).

coal mining kzn village

Earth movers flattening a large area of land next to eMalahleni village near Mtubatuba in KwaZulu-Natal, where the Tendele mining company hopes to establish a new open-cast anthracite pit. (Photo: Supplied)

coal mining kzn village

Residents walk past some of the occupied and unoccupied homes near the proposed mine. (Photo: Supplied)

Mcejo’s members fear being removed permanently from their homes and ancestral land or of having to live on the fence line of open-cast coal mines for the next few decades.

As things stand, current mining laws only require the evacuation of people and homes within a 500m radius of mine blasting zones. According to Tendele, more than 90% of affected residents in this rural community have voted freely to abandon their homes and ancestral land — apparently for the greater good of a broader community anxious to retain up to 1,200 jobs as coal miners or as service suppliers.

coal mining kzn village

The Msiziwamakristu primary school at eMalahleni is barely 500m from the edges of the proposed Tendele mining pit. (Photo: Supplied)

Since Tendele began mining in this region in 2007, more than 225 extended families have been “relocated” to make way for its mining pits, with at least 143 more families now in line to be shifted out in the latest mine expansion drive. Full details about financial compensation agreements for these families have not been disclosed by the company.

Stinging judgment

In a stinging judgment two years ago, the Gauteng Division of the High Court in Pretoria Judge Noluntu Bam rebuked Tendele for conducting a defective public participation process in the area, even though a decision to grant mining rights had far-reaching consequences for affected communities.

She said the law required the company to conduct a thorough public consultation and environmental impact assessment process, whereas Tendele’s attempt to sidestep good-faith consultation was a fundamental breach of the law and “nothing short of egregious”.

coal mining kzn village

A draft traffic impact study suggests there could be up to 243 trucks a day (at the rate of 44 coal trucks an hour both ways) passing through the villages of eMalahleni and Ophondweni. (Source: Jinyela draft traffic impact report / Image: Supplied)

“The attitude displayed by Tendele during the scoping phase of its application process is offensive. It portrays Tendele as an ‘unbridled horse’ that showed little or no regard for the law.”

And yet, despite these strong criticisms, Judge Bam stopped short of ordering Tendele to go back to the drawing board to start the approval process afresh.

Taking into account several factors — including Tendele’s role as a major employer in the Somkhele area near Mtubatuba; its financial contribution to the national economy; its annual sales of 600,000 tonnes of anthracite to local ferrochrome producers and its payment of “hundreds of millions of rand in taxes” to the government — the judge declined to set aside the illegally granted mining rights.

Instead, Judge Bam said this was a case that called for “pragmatism” and ordered that the matter be referred back to Mineral Resources and Energy Minister Gwede Mantashe for reconsideration “in line with the findings of this judgment”.

While Tendele and Mcejo both appear to have interpreted aspects of Judge Bam’s judgment as legal victories for themselves, the case returned to the courts last year, when Mcejo sought an urgent interdict to restrain the company from commencing with any “mining and mining-related activities” before the EIA was completed.

coal mining kzn village

The marks on this graphic indicate the proximity of homes, schools and other ‘Blast Sensitive Receptors’ (BSRs) in the immediate vicinity of the proposed eMalahleni anthracite mining pit. (Source: Tendele draft EIA report)

In his July 2023 judgment, Pietermaritzburg High Court Judge Piet Koen commented that he had been placed in the position of having to interpret the meaning and effect of another court’s ruling.

He said it was “unfortunate” that both parties had declined his suggestion to rather approach Judge Bam to clarify any possible ambiguities in her ruling as to whether she intended that mining could continue pending the finalisation of the new process by the minister.

However, as both parties had declined this approach, he was required to adjudicate narrower questions of law in this case, rather than the conduct of the mining company.

The upshot was that Judge Koen ruled that the company’s mining rights remained legally in effect, despite Judge Bam’s judgment that they were invalid and unlawful.

Tendele appears to have interpreted Judge Koen’s judgment as granting explicit permission for mining to commence, even though the judge remarked that no time limits had been set for the revised EIA process to be completed.

He further commented that if Tendele’s interpretation was correct, the new environmental approval process set out by Judge Bam would largely become an “academic exercise”, with mining proceeding indefinitely with no valid mining right and environmental management programme ever having been properly authorised.  

Now, nearly a year after Judge Koen’s judgment, Tendele has sent in the bulldozers and graders.

Confusion and divisions

Tendele’s environmental consultants belatedly published a draft EIA report on 15 May, giving affected parties just 30 days to digest, interrogate and comment on a highly technical report of more than 8,000 pages that has fundamental implications for hundreds of residents of the Emalahleni, Ophondweni and Mahujini settlements.

In a media statement on 23 May, Mcejo said: “Everyone is very much confused about what is really happening. They are asking so many questions but there is no one to answer them.”

Significantly, the mining proposal has also sparked violent divisions within the community, including the murder of senior Mcejo member Fikile Ntshangase who was gunned down at her home in Ophondweni in October 2022 after she refused to leave her home to make way for mining.

Tendele insists that no one will be forced to leave, and that the “majority” of the community favoured mining. Yet documents in Tendele’s new draft EIA report suggest that intimidation continues against residents unwilling to move out.

As recently as last month, a resident laid a complaint with the police after multiple gunshots were allegedly fired above his home and another resident received a telephonic death threat after failing to sign an agreement to “relocate”.

coal mining kzn village

Abandoned homes next to the proposed anthracite mine. (Photo: Supplied)

In the draft EIA documents, Tendele stated that it did not condone any forms of violence or intimidation and “vehemently denies” any implication that it was responsible for any violence in the area.

All Rise attorney Kirsten Youens, representing Mcejo, has written to Tendele’s lawyers requesting a detailed schedule of the company’s proposed construction works over the coming months.

“This construction work makes a complete mockery of the EIA and public participation process,” she said.

Youens complained that since Tendele began construction work in early May, residents had been struggling to sleep.

“The operations are extremely loud and continue almost 24 hours every day, including weekends.”

Fellow All Rise attorney Janice Tooley posed the question: What is the point of public consultation or an EIA if the company starts to build a mine before the legal processes are concluded?

Tooley likened the recent arrival of Tendele’s bulldozers and earth-movers to a process of “constructive eviction”.

“Emalaheleni is just not ‘home’ any more. A lot of people have left already and several people are living in exile … the violence continues, even within families. One elderly lady [recently] found bullet casings outside her home and we think a relative is threatening her [to sign an agreement with Tendele to move out].”

But Tendele has insisted that it is acting within the law.

‘Overwhelming support’ for mining

The company’s lawyers, Malan Scholes, stated in a letter to All Rise attorneys, “As confirmed by Judge Koen in his judgment of 13 July 2023, Tendele is lawfully entitled to mine in accordance with its mining right and existing EMPr.

“Your clients’ understanding that Tendele cannot mine until it completes the EIA process and submits an appeal to the minister, is not supported in law and is incorrect.”

coal mining kzn village letter

A screenshot of a letter from Tendele’s attorneys, Malan Scholes, to Mcejo’s lawyers. (Screengrab: Supplied)

The Department of Mineral Resources and Energy — the government department responsible for overseeing environmental authorisation for mining ventures — has not responded to Daily Maverick’s requests to clarify its position on Tendele commencing work before the EIA process and ministerial appeal process is concluded.

In response to questions sent to the company on 23 May, Petmin CEO Jan du Preez asked Daily Maverick to hold off publication until after the elections, saying the company had taken legal advice because of the “substantial and sensitive nature of your questions and the potential impact on thousands of people”.

coal mining kzn village

Tendele has indicated that it regards its Relocation Action Plan to be ’sensitive‘ and confidential. (Source Tendele draft EIA report)

“In line with DM’s high standards, we simply want to ensure fairness in the article, especially confirming that we have now won every single court case and have the support of the majority of the community.

“This morning [27 May], we began consulting with the community around the mine, as it is extremely important that our response contextualises our actions, including the notice to start mining and the notice that the draft 2024 EMPr (more than 7,000 pages) has been submitted for public comment.”

But late on 28 May, he provided a formal reply to our questions, for attribution to Tendele business development director Nathi Kunene. See his full response to the questions below.

In response to the questions, the company reiterated its position that the company was permitted to start mining “in parallel to the EIA process and public participation process (PPP).

“Put differently, had the EIA process and PPP needed to be completed before mining, then Judge Bam would have simply suspended both the mining right and EMPr until the minister decided on the EIA and PPP process.”

“In the coming weeks at Emalahleni, relocation [of] households will continue, further equipment will be brought to site, employment of more people will continue to do the construction and clearance of areas where we intend to conduct further mining activities in accordance with our approvals.”

coal mining kzn village

According to the draft EIA report, ‘relocation’ areas have not been finalised yet for all residents affected by the proposed mining operations. (Source Tendele EIA report)

What will happen to families that refuse to leave their homes?

“Tendele will act in accordance with the law and will continue to negotiate in good faith. 

“Since we have advertised the initial positions to start mining, we have received over 5,000 job applications. We have also started engaging with local businesses and have received over 100 company profiles.

“We can see from this overwhelming support and interest that there are many people who are in dire financial straits and are looking for financial opportunities in the area. We want to assure that anyone that has showed an interest to work for or with the mine, that even if they are not successful on their application, they will remain on our database and will be contacted if positions and opportunities arise.”

Tendele’s environmental consultants have said that the public has until 19 June to comment on the draft EIA report. It can be accessed here. DM

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  • Themba Fakazi says:

    DM is caught in the middle ….it needs to sell news ….and stay professional …the green activists will do everything in their power to stop mining activities ….including publishing articles which invoke reaction ….At the end of the day the following facts are facts: 1)Mining legislation requirements have been met.2)The greater community 98% want the mine. ….It is easy for people whom stay in the cities to make comments ,in order to stop progress, without providing any form of alternatives.DM please send a questionnaire to the parties whom object to this mining project and ask them to supply a list of things they propose to do or have done in the past years to uplift this community in particular.

  • Myson Mkhwanazi says:

    It’s Election Day! Let’s Celebrate Democracy!

    In a democratic society, everyone has the right to express their opinions freely.

    The DM deserves significant credit for its contribution to South Africa, ensuring that democracy is truly embedded in our society’s fabric.

    Tony, is exercising this right. However, he seems to have missed the mark significantly, and one has to ask, “WHY?” Articles like this, which are sensational, can be extremely dangerous as the lives and livelihoods of thousands of people in my community depend on the mine.

    Furthermore, DM failed to link his article to the January 4th DM article written by community leaders representing more than 200,000 people – and at the time we were extremely grateful for DM to publish our letter. This letter expressed our dismay at the poor and factually incorrect reporting on the Tendele indicated that the mine has won five court cases in a row since 2018.
    We understand that the DM frantically supports the truth. However, in this instance, they failed to fact-check Tony – and DM should explain that Tony’s article does not necessarily reflect the views of the DM and that Tony is a freelance reporter.

    It is worth mentioning that many of my community members have tried to meet with All Rise and have requested that the membership of MCEJO be shared with independent people to verify membership. Despite numerous attempts, All Rise has failed to meet us or disclose membership. This should be contrasted with the 27 public meetings our community supported during the Public Participation Process, independently managed by WSP, a global consulting firm.

    Sad to say, but All Rise, are fighting their losing legal battle in public and yet refuse to engage us in public. Their efforts aim to discredit the mine, which negatively impacts thousands of our community members.

    Tony’s article only acknowledges at the bottom, after several significant and legally incorrect claims, that two judges specifically ruled that Tendele has the legal right to continue mining while finalizing the public participation process.

    Tony fails to indicate that the social impact section of the draft EMPR specifically outlines that there is about 90% unemployment in the area, and average household income is less than R1,600 per family.

    Tony fails to mention that more than 90% of the community voted to support mining in an IPILRA vote managed by our traditional council.

    If the Daily Maverick visited the area, (and we urge them to come ), they would have noted that many families have been relocated and are extremely happy with the move.

    At what point will environmentalists understand that they cannot stop the mine as the community supports it?

    May democracy be the winner today and in the coming days in the Mpukonyoni community!

    Enjoy Voting!

  • I don’t know which people Mr Mayson Mkhwanazi is talking about, Am one of the families affected by this mine relocation, we are not happy at all with our relocation compensation the mine is proposing to give us. When we try to communicate our grievances with the mine they say they can’t help us.

    Sadly those who received their money they stole and vandalized our home, even took our fence

    We haven’t received a single cent from the mine yet it has started to mine, as a family we do want the mine to work but work must commence once compensations are finalized and that when we will all be happy as Mr Mkhwanazi said.

    Tony you must also ask Tendele on which method they used to calculate compensation for each family if I show you our home and show you sum they are proposing to us you will be shocked, there are families with low standard houses yet they are given 5x more than ours.

  • Bob Fraser says:

    Bob F – May 30th 2024 at 06:20
    Why no response from Gwede Mantashe? Was he perhaps too occupied with the election, or is it something more sinister?

  • Patrick O'Shea says:

    Whatever the rights and wrongs in this particular case, any new mine should be obliged to contribute towards rail transport for the movement of their output. The truckers are becoming as bad as the taxis, and causing exponentially more damage to road infrastructure.

  • Penny Philip says:

    I’m curious, when communities are resettled to make way for mining activities what sort of compensation/housing/ services are they given in the new area? They can’t all be given jobs in the mines as some must be under age/ too old / unwell/ unsuitable.

  • Janette Klein says:

    Just a question. Where is all this anthracite / ferrochrome going to be used. In South Africa or China ?

  • Janette Klein says:

    Just a question. Where is all this anthracite / ferrochrome going to be used. In South Africa or China ?

  • Wendy Dewberry says:

    Well it seems that the ANC has been voted out of that area. Hopefully the new party will better look after the people it serves there and protect inhabitants consttitutional rights. It’s not rocket science to understand just how much spin-doctoring the advocates of coal mining have to do. Traditionally, their lies should not be believed. This we know by now. Out with the Greedy !

  • Lucky Gumede says:

    The saga continues, Mcejo ( as I was informed by my uncle),tried to close Emalaheni down again, they arrived apparently in Pietermaritzburg cars and demanded that mining stops .” Mcejo” is causing havoc here by us. They do not represent this community!!! Why do PMB people interfere at Somkhele?

  • Myson Mkhwanazi says:

    As we wake up today, we still find ourselves without a government following the recent elections.

    I’m sure the Daily Maverick is aware of the illegal march to the Tendele offices in Johannesburg and at the mine. This march was stopped by the police due to the lack of approval from the authorities. Additionally, people arrived from outside our community in four taxis and a large bus. If you look at social media, you’ll notice that most of the speakers at this march couldn’t even speak Zulu and were referring to underground mining and other issues not related to mining in our area.

    Coincidentally, this same week, the Ford Foundation announced that All Rise, the MCEJO attorneys, received a $300,000 grant. This might explain how they could afford to rent buses. Our community is tired of outsiders trying to influence us. These activists are exploiting very poor people in our community to further their cause. If their actions lead to the mine’s closure, our entire community will suffer greatly. People from outside our community are trying to destroy our mine, which provides livelihoods for many of us.

    As one of the leaders in the community, I can confirm that no one from the march has ever approached the traditional council to discuss their concerns with the mine. These lawyers seem to prefer public fights and using public forums. It is with interest that I note the Daily Maverick article explaining how Africa must bear the brunt of Europe’s pollution. We have no issue with All Rise being an activist firm, but they should be transparent with our community that they are being paid to do so, and their actions will lead to the mine’s closure.

    This morning, I read with great interest that the DM editor stated, “This year, perhaps more than any other, the truth matters. We will defend that truth until our fingers bleed.” I hope this policy also applies to the mine in our community, as the DM has been using freelance writers without verifying any facts and has never visited us. How is it possible that the mine has lost five court cases in a row, as explained in our letter to the DM on January 4, 2024?

    As for some of the comments made in the past few days, 139 families have signed agreements and are in the process of being relocated. The DM should come and see how the economic conditions of lives our community are being improved by the mine. Finally, this weekend, they are 4 public participation, meetings in the community independently chaired by WSP and once again mcejo Will not attend as they are “too scared”. But they have the courage to illegally march 🥲

  • Myson Mkhwanazi says:

    Can I edit my post that is awaiting approval ?

  • Myson Mkhwanazi says:

    It pains me that they were two community meetings today in our area, and the Mine received full support for its mining operations. Not one reporter attended and I thus decided to provide and UPDATE ON HISTORIC LITIGATION that indicates that Tendele has won 6 court cases in a row as outlined in the 4 January 2024 letter PENNED by Community leaders representing some 220 000 people (as appose to All Rise that has never disclosed the MCEJO membership, and TC believes that they have less than 50 suporters in the community. At the 5 June 24 illegal march there were less than 100 Mcejo people, that included 4 taxi’s and one bus from areas away from the mine. Info re court cases below as Mr Carnie failed to mention it.
    In 2017, MCEJO and others approached the Pietermaritzburg high court seeking to interdict Tendele’s mining activities at the Somkhele Mine. That application was dismissed with costs by Judge Rishi Seegobin.

    Judge Rishi Seegobin held that MCEJO and others had failed to make a proper case for interdictory relief and to demonstrate that Tendele was mining unlawfully. The Judge remarked that “the applicants used a scattergun approach, and failed to hit the target once”.

    In 2020, the Supreme Court of Appeal (SCA) heard an appeal against the judgment of Judge Seegobin. The majority of the SCA found that the applicants (MCEJO and others) had failed to plead their case properly and that this ought to have led to the dismissal of the application for leave to appeal. Judge Ashton Schippers, however, dissented from the majority. Even though Judge Schippers disagreed with the majority, he indicated that he would nonetheless have granted just and equitable relief to allow Tendele to continue to mine while it brought itself into compliance with the applicable statutory requirements.

    Judge Schippers stated:

    “If Tendele’s mining operations are brought to a grinding halt, this would have catastrophic consequences. The mine is the primary driver of economic activity in Mtubatuba. It employs over 1,000 people and 83% of its employees live in the Mpukunyoni area surrounding the mine.”

    MCEJO brought an application for leave to appeal the SCA judgment to the Constitutional Court, which the Constitutional Court dismissed for lack of prospects of success.

    In the Review Application, MCEJO applied to the court to set aside Tendele’s Mining Right and on 4 May 2022, the Pretoria high court handed down a judgment. In the judgment, Judge Bam called for “pragmatism”. Tendele’s Mining Right and EMPr were not set aside by the court, but the appeal was sent back to the Minister of Mineral Resources and Energy for reconsideration.

    Again, the motivation behind Judge Bam’s refusal to set aside the Mining Right and EMPr of Tendele was premised on the economic role being played by Tendele Mine within our community and follows from the pragmatic approach adopted by SCA.

    In 2023, Tendele started pre-mining activities in the new mining areas and MCEJO and others brought an interdict application to stop Tendele. Judge Piet Koen in Pietermaritzburg high court, interpreted Judge Bam’s judgement and confirmed that Judge Bam never intended to close the mining operation of Tendele, but that Tendele should be allowed to continue with its mining operations, under the 2016 Mining Right and EMPr, while attending to deficiencies in respect of public participation and Ipilra consent processes. The reasoning of Judge Koen is in line with the SCA approach that it would not make sense to close Tendele mining operation if regard is had to the economic contribution that Tendele makes in the Mpukunyoni Community.

    The judgment of Judge Bam speaks for itself that Judge Bam never intended to close down the mining operation of Tendele.

    MCEJO and its co-applicants brought an application for leave to appeal the judgment of Judge Koen, which Koen subsequently dismissed.

    Of the six applications brought by MCEJO and its co-applicants in the high court, SCA and Constitutional Court, all were dismissed.

    We say all were dismissed because even Judge Bam refused to grant the main relief sought by MCEJO in the review application, to set aside the Mining Right of Tendele.

    As a direct result of the continued litigation being mounted by MCEJO against Tendele, 1,600 employees, the majority of them local Community members, have been retrenched since June 2022 because Tendele cannot access, and start mining in, the new mining areas in time.

    The various judgements highlight the economic importance of Tendele to the community. Thus recognising the need for a balanced approach

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