3 June 2020
“We know that if we are not here, our house will be burnt down,” says Tholakele Mthetwa.
In April her home, in the village of Ophondweni, KwaZulu-Natal, was raked by gunfire while the family was in bed preparing to turn in for the night. 19 spent cartridges were found on the scene.
In the first week of May, a neighbour, Bheki Mdletshe, received an SMS: “If you are stubborn enough not to move we will shoot at whomever is working at your household so that we could all starve … And do not forget we know where the breadwinner works.”
The Mthethwa and Mdletshe families live on land earmarked for the extension of the Somkhele coal mine, one of the country’s largest open-cast coal mines, close to Africa’s oldest proclaimed nature reserve, Hluhluwe-iMfolozi Game Park.
Much of the deposits at the Somkhele mine have been exhausted and its owners, Tendele Coal Mining, need to break new ground.
Mining rights granted in 2016 – valid until October 2046 – allow Tendele to extend operations including into Ophondweni and neighbouring Emahlahleni. Although the mining licence covers an area of 220 square kilometres, extended mining operations would only cover a fraction of this – about 10 square km, according to Tendele CEO Jan Du Preez.
Tendele has offered residents what it considers to be generous compensation, akin to a winning lottery ticket, said Du Preez.
He said 24 of 370 households are holding out, threatening the mine’s future and the jobs of 1,600 mine employees and subcontractors in an area where unemployment is high.
The mine was forced to shut from 27 March to 20 April because of the national Covid-19 lockdown. It has since been ramping up production – metallurgical anthracite chiefly – but has lost more than one month’s sales and now faces growing uncertainty amid a slump in world commodity markets.
The Mfolozi Community Environmental Justice Organisation (MJECO), which counts 4,000 members in the region (a figure which Tendele disputes) sees the issue as much bigger than a conflict between the mine, its supporters and dependents on one side and the two dozen households holding out on the other. Extending the mine will affect thousands of people living in the area.
While the mine’s business development manager, Nathi Kunene, provided a detailed account of the positive benefits arising from the mine beyond direct employment, many of MJECO’s members are subsistence farmers. They complain that coal dust pollutes their crops, turns their white chickens grey and the intestines of their goats black.
Coal dust also pollutes rainwater and the mine also requires lots of water, putting pressure on existing sources.
MJECO’s attorney, Kirsten Youens, said during a drought-stricken period in 2016, the mine had sunk boreholes into the dry river beds of the iMfolozi River – a major source of water to the nearby iSimangaliso Wetland Park, a UNESCO World Heritage Site.
“They did not have the proper water use authorisations to do so,” said Youens, but the mine disputes this and a host of other claims about damage to nearby homes caused by blasting, excessive noise, and relocation of graves without proper consent.
More recently, there are allegations of bullying tactics to force people to relocate.
MJECO is challenging the mine through the courts in two parallel cases. One of the cases, expected to be heard by the High Court in Pretoria later this year, is to set aside a 2016 extension of mining rights.
The second case is an appeal hearing. It follows a failed High Court bid in 2018, where Global Environmental Trust and MJECO applied for an order compelling Tendele to halt all mining until it complied with environmental and other legislation. The judge dismissed the application, saying it was one thing to allege a statutory breach, but quite another to provide proof. He later granted leave to appeal.
Heads of arguments in the appeal case were filed on 8 May by land rights lawyer Tembeka Ncgukaitobi. In court papers, he argues that large-scale mining is often lauded for its economic benefit, but it comes at a cost to people and the environment. It can produce waste which is harmful to the health of communities and disrupt social and cultural norms.
“Members of a single community in favour of mining, supposedly for the promised economic benefit, can be pitted against those in opposition, sometimes concerned about the damage of mining,” said Ncukatiobi.
He said these considerations were covered by the Constitution and environmental legislation.
“The sharp edge of the appeal is that compliance with environmental legislation before commencement of mining activity is not optional, but obligatory,” said Ncukatiobi.
Legally, the case is a complex one with new and old legislation on resource extraction, the environment and land rights.
“Old order legislation and the common law in South Africa continues to inform some judicial interpretations of statutes in three important ways,” said Ncgukatiobi. “First, mining laws continue to be perceived as superior to environmental laws. This case is a perfect example where this approach was taken by the High Court.”
“Second, environmental concerns are rendered subservient to commercial, trade and business concerns. There is excessive focus on the supposed economic benefits of mining, with the concerns of long-term sustainability of the environment and local economies ignored.”
“Third, mining interests often trump land rights – sometimes giving rise to a form of ‘expropriation without compensation’ in the sense that once mining rights are granted, the rights holder believes it has the right to remove people from their land (including the destruction of cultural sites like graves).
“This appeal seeks to reverse this and to develop a nuanced and balanced approach to mining concerns on the one hand and land and environmental interests, on the other,” said Ncgukatiabi.
In a landmark 2018 judgement on the Xolobeni Minerals Sands Project, the High Court ruled that the minister for mineral resources had to obtain full and formal consent from the Xolobeni community in the Eastern Cape before granting mining rights.
The ruling sought to achieve a balance between mining interests and other concerns such as land, water and cultural rights, without creating a relationship of subservience between these, said Ncukgatiobi. “It was held that communities living on the land and closely affected by mining should be consulted and consent to the deprivation of land.”
“This line of argument applies equally to [the Tendele appeal] case as no consent was sought.”
But Du Preez says there has been a “massive distortion of facts”, both in court and in media coverage of the dispute. Thousands, he said, were “100 percent in support of the mine”.
The company is now pursuing court intervention too. It served High Court papers on the weekend of 9 May, advising 24 families to appear in the Pietermaritzburg High Court on 17 June for a judge to determine the compensation to be paid to them.
“They [the households refusing to accept the mine’s offer] are asking … unreasonably more than what their houses are worth,” said Kunene.
“There is one house that is worth R300,000, but the family wants R7 million. I do not know what informs this. They will not tell us. They are trying to blackmail the mine for more money, and we cannot move a single family until all families have signed.”
There was also a “huge problem” with people moving into the extension area and building shacks in a ploy to get relocation settlements, said Kunene.
Du Preez said relocation negotiations had been on-going for 33 months. He said if Tendele could not begin with site preparation work in Ophondweni and Emalahleni by 1 July, the company would be forced to retrench all but 77 employees and close the mine.
This would have a huge knock-on effect, ending all the benefits of the company’s social and labour plan, said Kunene. He said this included contracts with 70 community-based entrepreneurs, skills training for the unemployed people, agricultural and basic infrastructure projects sponsored by the mine as well as educational initiatives at crèches, primary schools and an edu-centre catering for high school and university students.
Responding to criticism that the mine had degraded and depleted the residents’ water, Du Preez said the opposite was true. Tendele, he insisted, had done more than its bit to assist residents with water where the local municipality had failed to provide this basic service.
He acknowledged the mine had made mistakes in the past but it had worked to rectify these with support from the Department of Minerals and Energy, the local traditional council, municipality, unions and people in the directly affected communities.
Ophondweni is on land held by the Zulu king’s Ingonyama Trust. Any negotiations have to involve a hierarchy of traditional leaders operating through their own councils, in addition to elected representatives.
Mthethwa and Mdletshe were among those summoned to a traditional council meeting in February where they were asked to sign relocation papers, failing which “people will get shot”, they were allegedly told.
In sworn statements to their attorneys, they give similar accounts of what was said at the meeting and the names of the traditional leaders and their representatives who were present.
Visits, calls and other messages that they regarded as threatening, have followed since then.
Deputy chairperson of the Mpukunyoni Traditional Council MQ Mkhwanazi, said, “The mine is authorised by the whole community, but a few people – some of them not from here, from the outside – are instigating people to fight the mine.”
He said he and other traditional leaders had been instrumental in “bringing mining to the area for the benefit of all people” in 2006.
Mkhwanazi said he had heard about the drive-by shooting at the Mthethwa home, “but no-one was injured”.
“It just happens that people are shooting up [in the air] and doing those things. I can’t deny that, but I am afraid that those people who don’t want to mine, can even shoot through their own windows so they can say that people are attacking them,” said Mkhwanazi.
Police confirmed that an attempted murder case had been opened in the Mthethwa case but declined to comment on the death threat received by Mdletshe.
Several human rights activists have expressed concern that the local police have been tardy in responding to these recent incidents of intimidation and violence.
“People who have been threatened, or had their homes shot at by what appear to be R4/R5 type guns, are not being given the protection which the Constitution demands the police to provide,” wrote Mary de Haas, who has for many years monitored violence in the province, in letters sent to senior local and provincial police officials.
Youens said that mine management continued to send out open letters to staff and contractors blaming her clients for impending job losses. She said this amounted to incitement.
“My clients would like the mine to close, and land that has been destroyed rehabilitated so that trees and indigenous vegetation can grow again, and the water restored to its original levels. If that’s not possible, at the very least we need to stop the mine’s expansion. It cannot ruin any more lives,” said Youens.
But Du Preez said closure of the mine would be disastrous. “It will feel like permanent lockdown in the area. The percentage of people looking for basic food, and without water, will dramatically increase … And here’s the irony, I do not need this mine. People who are highly trained, like Nathi [Kunene] and many others do not need this mine. We’ll be fine. The 70 people who have created new businesses may be okay, but the people shouting and screaming on the sidelines, will have nothing. 20,000 people we have trained and benefited from the mine, will have nothing. This is the story that needs to be told one day.”
“And if legislation makes it impossible to create businesses, it will scare away foreign investment, and South Africa will die,” added Du Preez.
“That’s typical mining rhetoric,” said Youens. “The narrative in South Africa needs to change and I feel humbled by courageous people who risk their lives to bring about this change. For them, this is no way like a lottery – it is about their lives.”