South Africa’s judiciary in question after controversial coal mine ruling

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  • In a very disappointing High Court judgment handed down yesterday, Koen J, dismissed the interdict application brought by Mfolozi Community Environmental Justice Organisation (MCEJO)/ Global Environmental Trust (GET)/ Mining Affected Communities United in Action (MACUA)/ ACTIONAID South Africa (AASA) and the Southern Africa Human Rights Defenders Network (SAHRDN).

The urgent interdict was launched when Tendele delivered notices to the people in the community to inform them that they would be from commencing with mining activities in March 2023 in spite of a successful judgment in the applicants’ favour handed down in May 2022 by the Pretoria High Court.

In the interdict, the applicants argued that Tendele had not complied with the requirements of Judge Bam’s order in that it had not completed a Scoping and EIA process, it had not obtained community consent in terms of IPILRA and that it is also required to comply with the necessary legal requirements prior to commencement with mining, such as compliance with its Environmental Management Programme (EMPr). For example, Tendele’s proposed haul road runs along provincial roads, including the main road from Mtubatuba to Hlabisa. This is not approved in Tendele’s EMPr.

Much of Koen J’s 48-page judgment focuses on what Bam J intended by her order “that the decisions are ‘not set aside’, and what primary issues the judgment covered”. [Para 46]. In spite of acknowledging that “members of the first applicant who reside in the area, would be affected by such mining …. and… that a right in the Bill of Rights has been infringed or threatened, has not been placed in dispute”, he favoured Tendele’s interpretation of Judge Bam’s order.

Koen J recorded that Bam J’s order required Tendele to remit the appeal to the Minister and that the appeal [as ordered by Bam J]is, on Tendele’s own version, not yet ready for hearing. [para 35]. His judgment also states that “[t]here is no doubt that if the work … proceeded …that the affected owners could suffer harm, and probably irreparable harm”.  Tendele admitted in the hearing that the scoping and EIA process has not been completed, that it has not prepared and implemented a biodiversity offset plan as required by its mining licence, and that the haul road it intends to construct is not the one authorised in its Environmental Management Programme.

In spite of this, the main reason given for dismissing the applicants’ application was that “the applicants have not satisfied the requirements of a prima facie right”. (A prima facie right is a standard of proof under which the party need only present enough evidence to create a rebuttable presumption that the matter asserted is true. A prima facie standard of proof is relatively low.)

Perhaps what is more unfortunate is that the judgment ignores concessions made by Tendele that the biodiversity offset plan required in terms of its mining right has not been concluded, ignores the absence of any authorisation under Tendele’s current Environmental Management Programme for the proposed activities & dismisses the IPILRA argument based on misunderstanding that Bam, J had included this requirement in her order.

“Koen’s judgment takes away any justice and remedy that Bam J gave to the applicants regarding their right to public participation to inform decision-making.” Janice Tooley, attorney and Executive Director of ALL RISE.

“Environmental justice has not been served, and we are consulting with our clients with regard to the best way forward.” Kirsten Youens, attorney and Chief Executive Director, ALL RISE

“It makes no sense to us that Tendele can mine on our land without our consent and without being consulted or involved. This means they can do whatever they like. So indeed, we are not satisfied with Koen’s decision.” MCEJO Member

“Bad news indeed. We are all disappointed, but that is not the end.” MCEJO member.

Author: Bryan Groenendaal

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