Tendele Coal’s open pit mine, Somkhele, in northern KwaZulu-Natal, is set to close and has already cut 1,600 jobs, with 22 employees left, due to ongoing litigation.
But the group, Mfolozi Community Environmental Justice Organisation (MCEJO), that has brought repeated legal action against the miner says it has itself to blame for what it says is a failure to comply with environmental authorisation requirements.
A fourth legal case between the groups will be heard on Friday in the Pietermaritzburg high court with the MCEJO trying to interdict Tendele from starting to mine in three new areas.
Owned by Petmin, which was delisted from the JSE in 2017, Tendele runs an open pit anthracite coal mine in Mtubatuba, which began operations in 2006 and reached the end of its life in 2022.
In an effort to sustain its business and use existing equipment Tendele Coal Mining sought to expand the mine from 2016.
It applied for new mining rights and environmental permissions, which were granted and the minister of mineral resources & energy refused to hear MCEJO’s appeal against granting of the rights.
In 2018 the MCEJO and its lawyers All Rise approached the high court in Pretoria to have the granting of the mining right and environmental authorisation reviewed.
The case concluded in 2022, with Tendele withdrawing plans to mine in 92% of the area, with plans for three new pits that will keep it running for a decade.
Tendele said the lengthy case has thwarted its expansion plans and survival but MCEJO blamed the mining firm for dragging out the 2018 legal case with multiple legal applications.
In 2022 judge Noluntu Bam ruled that the mining right was irregularly granted, but allowed the mine to continue its operations. However, the judge overturned the mining minister’s refusal to hear an appeal about the granting of the right. The judgment allows environmental groups to appeal with the minister.
Bam also ordered that Tendele redo its public participation process, which the mine claims to have undertaken, detailing its radio advertisements, flyers, meetings, and votes of support by community members at the gatherings in court papers.
In February, Tendele said it would start new mining operations and the building of roads from March having conducted the fresh participation.
This has led to new litigation.
The case against the mine has been brought by the MCEJO and other NGOs, including Mining Affected Communities United in Action, Southern Africa Human Rights Defenders Network, and ActionAid SA. They argue Tendele has not complied with the 2022 order.
MCEJO argues Tendele failed to “meaningfully consult” with the local people and alleges that the mine did not obtain the community’s consent for mining activities or the construction of new roads.
They also call the 3,700 pages of Tendele’s court paper an abuse of process.
They say Tendele has not conducted a new environmental impact assessment. “It boldly states either that it does comply or given that it employs people and contributes to the economy it should not have to.”
Tendele argues it had complied with the order and has both the legal mining and environmental rights required.
It says due to the ongoing litigation, the mine has been placed on care and maintenance. “The economic and social benefits that the mine provided to the Mpukunyoni community and the national economy have ceased.”
Since its inception, Tendele said it contributed about R2.9bn in direct benefits to the local community in salaries, supplier contracts and community development.
The MCEJO tried to get an interdict against the mine in 2018 and failed in both the high court and supreme court.
The MCEJO is now back in court with its fourth case and Tendele asserts that it is “determined to force its permanent closure”.
Tendele owes its funders, including Standard Bank, Nedbank, and the Industrial Development Corporation a total of R367.7m. However, the mine is unable to repay this debt while its operations are stalled.
It says in court papers, the lenders “have shown patience thus far but may eventually consider the litigation risk too significant and may call in debts”. This would force the mine to close completely and have its assets stripped.
If Tendele wins the case the mine will become fully operational again, re-employing 1,200 individuals and providing contracts to 70 local entrepreneurs, it says.
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