Lithium mine objectors run into R345,000 appeal fee ‘roadblock’

If you live in the Ray Nkonyeni Municipality on the KwaZulu-Natal South Coast, you’ll need very deep pockets to appeal against a municipal rezoning decision, as several flabbergasted residents discovered late last year when they attempted to exercise their legal right to appeal against a municipal decision to legalise SA Lithium’s new open-cast mine next to the Umzumbe River.

In an email notification to numerous residents who raised a variety of concerns about the potentially negative impacts of the mine (see Part Two of this series), municipal official Thabo Ngcobo confirmed they could challenge the municipality’s rezoning of five local farms from agriculture to mining.

But, they would each need to cough up an appeal fee of R345,405.

Chris Viljoen, representing the Bendigo Residents and Ratepayers Association, objected vehemently, noting that indigent rural folk living next to the mine could never raise that kind of money. Did the municipality see such people as “just a rock in the road that can be kicked aside”, he asked.

Linda Cele, representing the Fairview Landowners’ Association, was more restrained in his formal response, simply requesting the council to provide legal proof of the stipulated municipal appeal fees, along with the relevant calculation formulae.

Ngcobo, describing himself as an intern based in the municipal manager’s office, wrote back to the objectors on 11 December 2024, attaching a schedule of the municipality’s latest tariff structures. 

According to Ngcobo, the fee was based on Section 57 of the Ray Nkonyeni by-laws and municipal tariffs, stipulating that the appeal fees for such objections were equivalent to the application fees paid by the developer, which were also based on the geometric area of the development (in this case R345 405).

Having discussed the issue with his manager, however, Ngcobo suggested that objectors might want to think about clubbing together to submit a single consolidated appeal to save costs.

‘Mockery of public participation”

Retired geologist and Sea Park resident Paddy Norman (one of the more than 20 people or groups known to have lodged objections to the mine’s rezoning plan) said he believed that Ray Nkonyeni’s stance in disregarding the initial objections and then demanding such an exorbitant appeal fee made a mockery of public participation.

“It totally skews the whole process against the interests of interested and affected parties, many of whom are already at a disadvantage in trying to respond to very technical information in an approval process regulated by the Department of Mineral Resources, which has a clear conflict of interest.”

Professor Michael Kidd, a senior academic and expert in water and environmental law at the University of KwaZulu-Natal, expressed surprise when asked to comment on the rezoning appeal fees set by Ray Nkonyeni Municipality.

Kidd said he was not familiar with the factors the municipality used to set tariffs in this case, though it was possible that there was an assumption that most appeals would come from aggrieved developers rather than from interested or affected parties.

Nevertheless, he noted that the Ray Nkonyeni appeal fee seemed to be “way out of kilter” with rezoning appeal tariffs by other, larger municipalities.

For example, the Ethekwini (Durban) Municipality’s tariff in rezoning appeals is R5,561, while the Msunduzi (Pietermaritzburg) Municipality’s appeal tariff is R6,296.

(The City of Ekhuruleni also appears to make a clear distinction between applicants and objectors in its appeal tariff structures, specifying a tariff of just under R2,400 for the applicant and a much lower R476 tariff for objectors.)

Ethekwini and Msunduzi both have flat tariffs not dependent on the geometric area of the application. Notably, Ethekwini also stipulates that there are no tariffs for appeals by state bodies and there is a provision for a 50% tariff reduction in rezoning matters for registered nonprofit organisations.

While it was possible that the Ray Nkonyeni tariff demand in this case was based on an administrative error, Kidd said it was highly unlikely that ordinary members of the public would pay an appeal tariff of more than R345,000.

As a result, this effectively prohibited them from exercising their right to appeal to a municipal tribunal, further prejudicing their ability to challenge the rezoning in any subsequent high court legal action.

Significantly, Ray Nkonyeni planning officials have acknowledged that SA Lithium lodged the rezoning application after mining operations began at Umzumbe – but municipal spokesperson Nomusa Zulu has not responded to a list of Daily Maverick questions on appeal tariffs since 6 June.

According to a rezoning approval document prepared by Ray Nkonyeni Municipality planning registrar Mfundo Dube dated 18 July 2024: 

“The objectors raise many important and valid points, and they are all taken into consideration. It is also considered that the mine operators (SA Lithium) have [shown] a lack of faith (sic) by proceeding with their operations without any formal consent from authorities. The mining licence for the project is recent as it is dated 18 December 2023, whereas the mining activities have been ongoing before this date. The mine is also located adjacent to the traditional settlement area of KwaMadlala and this is concerning as there are blasting activities occurring on the mine. 

“The location of the mine is not ideal due to the traditional settlements in close proximity, but the mine has entrenched itself into the local community by sub-contracting and employing people and companies from immediate surrounding areas. At this point, if the mine ceases operations, the socioeconomic consequences would be severe.” 

In fact, (as reported in Part Two of this series) some houses are less than 300m from the new mine, resulting in a situation where several families are required to evacuate their homes at times due to blasting operations.

 David and Goliath power dynamics

Nozizwe Madlala-Routledge, the former deputy minister of defence and of health, has raised concerns about whether the community should have to endure such “David and Goliath” power dynamics for the next two decades.

The former deputy minister – who was axed by former President Thabo Mbeki due to apparent clashes with Mbeki and former health minister Manto Tshabalala-Msimang over national Aids policy, was born in Magog village and lived there until she married and entered national politics. Magog is immediately adjacent to the new SA Lithium mining pit.

Despite leaving Magog several years ago, she remains in regular contact with friends and relatives who often spoke about their growing anxiety about the future due to the new lithium mine on their doorstep.

Smaller-scale lithium mining had already begun before her mother, a local teacher, died in Magog in 2018. 

“My mother was very anxious about what would happen because of the mining. She wanted to know where we would bury her – and this was at a time when miners had started digging in the neighbourhood.”

In her view, the mining company has “been very reckless and left it very late to look at the basic requirements of mining so close to people.”

“With lithium in such high demand, our government could be doing more to help and protect the people and the environment and to ensure protection of our resources and heritage. My heart bleeds to see a place I love, a place where I was born, where my mother, her parents and grandparents are buried, and where I hoped to be buried one day, disappear so fast. The Magog of my childhood has gone,” she said. DM

See parts One and Two: 

Part One: New mine triggers ‘white gold’ prospecting stampede on the KZN South Coast

Part Two: ‘Progress’ lands on the doorstep of rural communities as lithium mine is blasted open