Mfolozi Community Environmental Justice Organisation and others v Tendele Coal Mining (Pty) Ltd and others

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Koen J
• Judgment Date: 13 July 2023
• Citation: 2023 JDR 2537 (KZP)
• Hearing Date: 09 June 2023
• Docket Number: 3518/2023P
• Court: KwaZulu-Natal Division, Pietermaritzburg

Koen J:

Introduction

[1]

The applicants [1] seek an interim interdict, in terms of Part A of the notice of motion, the relevant part reading as follows:

‘2.

The First Respondent is interdicted and restrained from undertaking [or] commencing with any mining and mining-related activities listed in its notices dated 14 February 2023 and 15 February 2023, as supplemented by its letter of 24 February 2023, which related to the First Respondent’s mining right described as “Part of Remainder or Reserve 3, No 158822, Hlabisa Magisterial District, measuring 21 233 0525 hectares, 222 km2 KZN30/5/1/2/2/10041MR” and the related mining areas, pending the finalisation of Part B of this Notice of Motion.

3.

Any Respondent opposing the application is ordered to pay the Applicants’ costs, including the costs of three Counsel.’

[2]

Part B of the notice of motion provides:

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‘5.

The First Respondent is interdicted and restrained from undertaking any mining and mining related activities, including the activities listed in its notices dated 14 February 2023 and 15 February 2023, as supplemented by its letter of 24 February 2023, pertaining to the First Respondent’s mining right described as “Part of Remainder or Reserve 3, No 158822, Hlabisa Magisterial District, measuring 21 233 0525 hectares, 222 km2 KZN30/5/1/2/2/10041MR” and the mining areas related thereto unless and until they have:

5.1

complied with the order of the North Gauteng High Court under case number 82865/2018 by:

5.1.1

Completing an Environmental Impact Assessment process as contemplated in Section 39(1) of the Mineral and Petroleum Resources Development Act 28 of 2002 (“MPRDA”);

5.1.2

Compiling and delivering a scoping report, environmental impact assessment report and environmental management program that adheres to Regulations 49, 50 and 51 of the MPRDA Regulations, Reg 527 of GG 26275 of 2004;

5.1.3

Obtaining consent, in terms of section 2 of the Interim Protection of Informal Land Rights Act 31 of 1996 (“IPILRA”), specifically from the persons who may be deprived of their informal rights to land by the execution of the First Respondent’s mining and related activities.

5.2

Complied with or amended its Environmental Management Programme (EMPr) and as far as it relates to the activities as set out in the 14 and 15 February 2023 Notices, supplemented by Tendele’s letter of 24 February 2023.

5.3

Conducted public participation processes compliant with the Public Participation Guidelines in terms of NEMA and Chapter 6 of the EIA Regulations, 2014 and any other legislative requirements, with members of the First Applicant and all interested and affected persons who:

5.3.1

Shall or may be resettled or relocated in the process of the First Respondent commencing its mining and/or related activities;

5.3.2

Reside or use land within the area where the intended haul road and temporary roads will be constructed or altered in any way;

5.3.3

Reside or use land within the areas where the intended fences will be erected;

5.3.4

Shall or may be relocated;

5.3.5

Reside or use land within the areas to which persons or infrastructure may be relocated;

5.3.6

Reside or use land in the biodiversity off-set areas;

5.3.7

Reside or use land in any other area to be affected by the mining or mining related activities.

6.

Any Respondent opposing the application is ordered to pay the Applicants’ costs, including the cost of three counsel.

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7.

Further and/or alternative relief.’

[3]

The application is opposed by the first respondent Tendele Coal Mining (Pty) Ltd (Tendele), the fifth respondent the Mpunkuyoni Traditional Authority, the sixth respondent the Mpunkuyoni Mining Forum, the seventh respondent the Association of Mineworkers and Construction Union, and the eighth respondent the National Union of Mineworkers. The application is not opposed by the Minister of Mineral Resources and Energy (the Minister) who is the second respondent, the Minister of Environmental Affairs, the third respondent, or the MEC for Transport, Community Safety and Liaison, KwaZulu-Natal, the fourth respondent.

Background

[4]

The mining right referred to in the notice of motion, which has been issued to Tendele, relates to an area of the Somkhele Mine (the mine) to which Tendele wishes to extend its operations. The mine is an open cast coal mine which Tendele has operated since 2006. [2] It is situated some 27 kilometres west of Mtubatuba in KwaZulu-Natal. It has one of the largest resources of open pit mineable anthracite reserves in South Africa. Tendele has played a crucial role in supplying local manufacturers with anthracite and facilitating the production of ferrochrome [3] and the manufacture of stainless steel. [4] It has been a major contributor to social and economic development in the area. It alleges that prior to it being placed on care and maintenance in July 2022, some 20 000 people benefited from employment and procurement opportunities at the mine, [5] and that since 2006 it has spent more than R1.2 billion establishing infrastructure and purchasing equipment at the mine, and some R6.5 billion developing the open mining pits. [6] It alleges that since it was placed on care and

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maintenance, following gradual retrenchment of mine employees, the unemployment rate in the Mtubatuba Local Municipality area has increased to between 70 and 80 per cent, and is now possibly higher.

[5]

The mine is a single operation that consists of mining pits divided into five areas, with separate mining rights and environmental management programmes (EMPr) applying to each area. Tendele mined in two areas until 2022. These two areas have now been depleted. It accordingly intends extending its mining operations to the Emalahleni, Ophondweni, and Mahujini areas (commonly also referred to as areas 4 and 5), the respective areas of which are 2.5836; 5.5585 and 1.5168 square kilometers.

[6]

Tendele’s proposed expansion into these areas is alleged to be necessary to enable it to continue operations for approximately another 10 years, to ensure its survival. The mining method and infrastructure which Tendele will use in the new areas will be the same as it has previously used. Should the mine intend to operate after this time, it would be obliged to apply afresh for a new mining right and environmental authorisation for any further new areas.

[7]

Mining activity impacts on the environment and has the potential for adversely affecting persons living and working in the vicinity of such mining operations. Mining activities, and decisions permitting such activities, implicate and create a tension between and amongst a number of constitutional rights and principles. At a bare minimum, these include inter alia the principle of legality, [7] the right to an environment that is not harmful to health or well-being, [8] the right of the mining entity to freedom of

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trade and to earn an income, and the right of the parties and the public generally to earn an income, [9] just administrative action [10] and the right to have disputes resolved by the application of law before a court. [11] Accordingly, the right to mine, and activities associated therewith, have come to be regulated by various statutory provisions, which themselves have been subject to amendments over time, which seek to strike a balance between these competing and other rights.

[8]

At the risk of oversimplification, these statutory provisions require a mining company, in the position of Tendele, to comply with a myriad of legislation, including, inter alia the Mineral and Petroleum Resources Development Act 28 of 2002 (MPRDA), and the requisite regulations, the National Environmental Management Act 107 of 1998 (NEMA), and the requisite regulations, and the Interim Protection of Informal Land Rights Act 31 of 1996 (IPILRA), and the requisite regulations, which prescribe various administrative procedures before an entity can mine on a particular portion of land. Without purporting to provide a comprehensive list of the requirements, [12] the administrative procedures required to be complied with entail, inter alia, the following:

(a)

An application by Tendele, followed by a decision by the Director General of the Department of Mineral Resources and Energy (the department), [13] to award the mining right to it;

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(b)

The preparation by Tendele of an EMPr relating to such mining, and a decision by the Regional Manager of the department approving the EMPr.

[9]

The issue of a mining right in terms of s 22 of the MPRDA requires inter alia an application in the prescribed manner, accompanied by an environmental impact assessment (EIA) and an EMPr. If the regional manager accepts the application, he must within 14 days notify the applicant for the mining right to conduct an EIA, submit an EMPr for approval under s 39, notify and consult interested and affected persons (I&APS) within 180 days, and make it known that an application for a mining right had been accepted in respect of the land in question. He must also call on I&APs to submit their comments for consideration within 30 days of notice. In terms of the MPRDA regulations an EIA requires the compilation of a scoping report and an EIA report, and finally a scoping report must be finalised in regard to the proposed mining operation dealing with a number of prescribed issues. [14]

[10]

Tendele applied for, and on 31 May 2016, was awarded the mining right in respect of Part of Remainder of Reserve 3 (Somkhele No 15822), which includes areas 4 and 5, by the director general of the department. In addition, the EMPr applicable to this mining area was approved by the regional manager of the department for the KZN...