The National Union of Mineworkers (NUM) has lost its urgent court bid to compel Richards Bay Coal Terminal (RBCT) to reverse its decision to bar Optimum Coal Mine from exporting coal through its terminal.
RBCT, the largest coal export facility in Africa, in December notified Optimum that its 6.5-million tonnes a year export allocation would be terminated at the end of January. RBCT said the decision was due to Optimum’s failure to meet coal exporter requirements pertaining to clauses contained in the RBCT shareholder’s agreement.
Optimum, which was previously owned by the Gupta family implicated in state capture, has been in business rescue since February 2018 after the Guptas fled the country and has remained under care and maintenance since.
Optimum’s business rescue practitioners have appealed against the decision to terminate its allocation and the matter is expected to be heard later in March. NUM argued it could not wait for the review application to be heard, and asked the court to declare the decision by RBCT invalid as it risks the jobs of its members.
In its affidavit, the union argued that the actions of RBCT in terminating the entitlement to export coal as of January 31 are likely to plunge Optimum into liquidation, in circumstances where neither the creditors nor employees of Optimum would be paid.
The union said that its nearly 2,000 members would be severely affected as their livelihoods will be at risk and that RBCT is not likely to suffer any prejudice in the event of the order being granted.
RBCT disputed NUM’s arguments and cited an investigation by an independent consultant it had commissioned in November 2022. It told the court the technical assessment by Isandla Coal Consulting of Optimum operations and the current mini-pit operators to verify their scale and output found that Optimum enables mining activities by five mini-pit contractors for about 910,000 tonnes of coal per month.
Yet, according to RBCT’s records, only about 300,000 tonnes of coal per month were exported through its facility, using Optimum’s entitlement. RBCT said this raised concerns that a significant amount of coal extracted from Optimum’s mining sites was not making its way through its export facility.
Judge MR Chetty of the high court in Durban ruled on Wednesday that the NUM had not made its case and dismissed its application with costs.
“I am not persuaded on the papers before me that the factors to be taken into account in determining whether to grant an urgent interim interdict are indeed ‘evenly balanced’. As stated earlier there is a dispute of fact on the papers as to whether NUM’s members will suffer irreparable harm if an interdict is not granted in their favour,” the judgment says.
“There is no direct response from NUM to the allegations made by RBCT of almost 600,000 tonnes of coal being unaccounted for in terms of its point of final destination, and obviously the revenue derived from such production. In my view, this throws a shadow over the allegations of the dire circumstances facing NUM’s members should this interim relief not be granted. This aspect of irreparable harm is also linked, in no small measure, to the issue of the urgency in launching this application.”
RBCT is owned by 13 coal mining companies, including subsidiaries of Glencore, South32, Sasol, Anglo American and Exxaro.
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