In an open letter, 36 civil society organisations (CSOs) are calling on an attorney representing the Mpukunyoni Traditional Authority, the Mpukunyoni Community Mining Forum, the Association of Mineworkers and Construction Union (AMCU) and the National Union of Mineworkers (NUM) to respect the Constitutional rights of community members.

In a judgment handed down by the Pretoria High Court on May 4, Judge Noluntu Bam found that coal mining company Tendele Coal Mining’s 2013 application for a mining right to expand its Somkhele operations had failed to comply with the law on multiple counts, and that the decision of officials in the Department of Minerals and Energy (DMR) - as it was then known - to award the mining right to Tendele was invalid, the CSOs note.

The CSOs say that, among the most serious transgressions, was Tendele’s “fundamental breach of the law with regard to public participation”.

Tendele relied solely on the alleged consent of the Mpukunyoni Traditional Council, which could not provide the court with any documented evidence that it had consulted with the broader community about the Somkhele mine, the CSOs note in their letter.

The CSOs' letter says that, despite the “clear, damning findings of the High Court”, many of which Tendele itself conceded during the course of the hearing, on May 17, a statement was issued by the attorney for the Mpukunyoni Traditional Council, the Mpukunyoni Community Mining Forum, AMCU and the NUM, titled ‘Mpukunyoni Community calls on All Rise and their funders to account to the community of their efforts to close Tendele mine’.

The letter states that as the attorney is aware, law firm All Rise Attorneys has represented the Mfolozi Community Environmental Justice Organisation, the first applicant in the case, against Tendele since 2017.

Since then, the Global Environmental Trust, Mining Affected Communities United in Action, ActionAid and the Southern Africa Human Rights Defenders Network have joined the application and are also represented by All Rise, it adds.

The letter indicates that the statement by the attorney attacks All Rise, “demanding to know the source of its funding, accusing it of wanting to close the mine and stating that ‘All Rise’s actions are tantamount to a gross human rights violation’.”

The letter emphasises that All Rise is a nonprofit organisation and registered law clinic for climate and environmental justice.

It notes that the South African Bill of Rights gives every person in South Africa the right to equality before the law, to just administrative action and to an environment that is not harmful to health or wellbeing.

“All Rise is representing its clients in the lawful exercise of these, and other, Constitutional rights. The judgment makes it clear – and Tendele itself concedes – that there were serious violations of mining and public participation laws in Tendele’s application to expand its operations.

“The applicants are exercising their Constitutional rights and any attempt to intimidate them as a result, should be of serious concern to everyone in South Africa,” the letter states.

It further adds that the Mpukunyoni Traditional Council and Tendele should know that traditional leaders and their structures do not have the authority to make decisions on land-use on behalf of the entire affected community.

The CSOs' letter also notes that one of the applicants in the case, the Southern African Human Rights Defenders Network, was established as a “strategic response to the shrinking civic space and increase in the systemic and systematic assaults on civil society and human rights defenders across Southern Africa”.

“Incendiary statements like the one issued by the Traditional Council and others serve to exacerbate an already fragile situation, risking further unacceptable violence. It is particularly concerning that the Mpukunyoni Community Mining Forum is a signatory to the statement.

“The forum is (according to the judgment) 'a structure established by Tendele in the Mpukunyoni community at the recommendation of the DMR, KwaZulu-Natal'.

"The statement starkly contradicts the “Roadmap Agreement” entered into in 2017 by Tendele and others, which includes as one of its purposes, to 'promote peace and stability in the community'.

"It also contradicts the code of conduct for all legal practitioners, candidate legal practitioners and juristic entities,” the letter reads.

The signatories to the CSOs' letter have called on the attorney and his clients to respect the right of the Mpukunyoni people to assert their Constitutional rights without fear of reprisal, to respect the judgment, to respect the right of their attorneys to act on behalf of their clients without fear of harassment, intimidation and defamation, and to respect the freedom of clients to be represented by a legal practitioner of their choice.

TENDELE COMMENTS

In a separate statement published on July 14, Tendele referenced an undated statement from All Rise entitled “Tendele’s wheels come off again”.

The statement relates to a public participation process in respect of an environmental-impact assessment (EIA) currently being conducted.

Tendele says the public participation process relating to an appeal that is currently before the Minister of Mineral Resources and Energy started on July 1, where notifications were delivered to directly impacted community members, advising these community members of the process being undertaken by Tendele and inviting them to participate in the process.

It indicates that notification has also been given to interested and affected parties (I&APs) and the general public through SMS, radio and newspaper advertisements and site notices placed at various locations in the community.

Tendele outlines that All Rise’s statement says that the environmental assessment practitioner (EAP) appointed to oversee the EIA process has “effectively (put) the traditional leadership in charge of conducting the consultation process in the community”.

“This is entirely incorrect. It is true that traditional leadership structures are among a number of people and groups requested by the EAP to ensure I&APs are notified of the process and are invited to participate in the process.

“Traditional leadership structures play an important role in communities in KwaZulu-Natal. The customs of this community must be respected. It would be a serious oversight and would be highly irregular if the traditional leadership’s communication practices and structures were not used as one of the means of ensuring that word of the process is spread as widely as possible,” Tendele emphasises.

It clarifies that the documentation being distributed, as well as the notice and the background information document (BID) and the attached notice are the work of the EAP.

Tendele outlines that, secondly, the statement says that “the EAP has determined that only people living within 1 km of each of the mining pits need to be notified.”

“Again, this is wholly incorrect. Actual and potential I&APs have been notified by hand delivered notice, email, SMS, radio and newspaper advertisements and site notices regarding the process as per the EIA regulations.

“Those closest to the site have to receive written notice as per the prescribed requirements of the EIA regulations and, thus, this was done for all residing within a 1 km radius of each of the three pits, as well as all within the three mining areas,” Tendele points out.

Thirdly, Tendele notes that the statement says “people are being given mixed messages by the traditional authority disseminating information and arranging meetings.”

It states that this is also incorrect.

“The traditional authority is not arranging meetings. The traditional authority simply assisted with handing out notices and BIDs to community members. This was done to ensure customary law protocols are observed.

“Notices were handed out by a number of people including the Izinduna counsellors and normal community members that reside in the area,” Tendele emphasises.

It adds that all public meetings will be held and run by the EAP and that all community members, including All Rise and its clients, are invited to attend the public meetings.

Fourthly, Tendele notes that the statement says that “a total of 602 families, approximately 6 000 people, will have to give up their homes, fields and livelihoods and go through the painful process of exhuming the graves of their loved ones and relocating to make way for Tendele’s operations.”

“Again, this is totally untrue and such a false assertion is likely to cause confusion and panic within the community. All Rise has made no effort to clarify these facts with the EAP before proceeding with a widely published press statement.

“The 602 families referred to are simply the families who reside within a 1 km radius of each of the pits or in the mining licence area and who were to receive written notification. This number was, in fact, a preliminary number that was used by the EAP in preliminary private planning documentation. The actual number of families residing within a 1 km radius of each of the pits and or in the mining licence area is slightly more,” Tendele outlines.

It clarifies that these families should not be confused with the 143 families who are required to be relocated in the Emalahleni and Ophondweni areas.

Tendele says it has been engaging with these families since 2017 and that 133 of the families have signed detailed agreements and have agreed to the terms of relocation, which includes compensation in line with, or better than, the terms of the International Finance Corporation (IFC) resettlement guidelines on these matters.

“The IFC guidelines are widely recognised as the benchmark for undertaking such processes. Efforts continue to reach agreement with the remaining ten families,” Tendele says.

Fifthly, Tendele says the All Rise statement refers to letters written to the EAP about fears allegedly caused by the traditional leaders.

The company states that the EAP has confirmed that he has responded to this letter and will offer solutions, including separate consultative meetings with anyone represented by All Rise. “All efforts will and are being made to accommodate All Rise clients,” Tendele emphasises.

Tendele mentions that it accepts and is in the process of implementing the court order that a new EIA be carried out.

“We invite All Rise not unduly to obstruct the EIA and the mine’s extension, and its ability to operate for another ten years should the EIA be successfully concluded.

“Failing that, as stated, they and their funders are invited to account to the 220 000 community members, including the retrenched employees, about their efforts to further impoverish the community,” Tendele says.