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- The high court has dismissed an application to stop a mine expansion at the Somkhele mine in rural Kwazulu-Natal.
- The anthracite coal mine effectively closed last year, and its survival ultimately depends on expansion plans.
- The applicants will now consider whether to lodge an urgent appeal.
- For more financial news, go to the News24 Business front page
The high court in Pietermaritzburg has given Petmin's Tendele Mining the green light to commence with mine expansion activities at its Somkhele anthracite coal mine in rural KwaZulu-Natal.
In a judgment handed down last week, the court dismissed an application brought by a community environmental justice group to interdict the mining activity.
The court found the Mfolozi Community Environmental Justice Organisation (MCEJO), the Global Environmental Trust (GET) and other NGOs had failed to make out a prima facie case for the relief they sought.
The activist organisations had approached the court to block the contentious restart of mining at the Somkhele coal mine on the basis that such activity cannot lawfully proceed until it has complied with several requirements set out in an order handed down by the North Gauteng high court in Pretoria last year.
In a judgment handed down by Justice Noluntu Bam, the court found Tendele had failed to comply with various statutory requirements and that there were numerous defects in its Environmental Impact Assessment (EIA) process and its public participation process.
Bam ordered that MCEJO's appeal of the decision to grant the mining right – which had been dismissed by mining minister Gwede Mantashe – be sent back for his reconsideration.
In MCEJO's view, this meant the mining right ceased to exist.
But as Tendele made preparations to proceed with its Somkhele expansion earlier this year, it argued that Bam's order had not nullified its mining right – rather, she had expressly preserved it - and that it was entitled to restart mining.
Tendele argued it was critical that it restart mining soon to prevent lenders from calling in their debts, causing the mine to close for good.
Troubled restart
After 15 years of operation, the Somkhele mine closed in July last year when the resource was depleted. Plans to expand operations were stalled by MCEJO's opposition.
The mine employed 1 200 people and mainly produced anthracite coal – a higher quality product distinct from thermal, or power station, coal and used in the ferrochrome and ferromanganese industries.
The expansion has however been a significant source of tension in the community, making headlines in late 2020 when Fikile Ntshangase, an active MCEJO member, was assassinated in her home.
In their court paper, MCEJO and co-applicants argued the proposed mining activities would deprive the community of their rights to land, threaten their livelihoods, and harm the community's health.
Tendele said the impacts could be mitigated and that the applicants had significantly exaggerated the irreparable harm they would suffer.
In the judgment handed down by the high court in Pietermaritzburg last week, Judge Piet Koen noted the parties could have approached Judge Bam for clarity on whether she intended her judgment to halt mining activities or not. "Regrettably, but perhaps unsurprisingly, the applicants and Tendele each advanced their favoured interpretation of what the judgment meant … That was unfortunate."
Koen found Bam's order "did not simply end with a declaration of invalidity". Instead, she "expressly declared that the decisions were 'not set aside'."
If Bam wanted to have the effect that mining could not continue, she simply would have set the decision aside. Instead, "the order she granted carries a strong inference that she did not want the mining to stop" as she sought to balance competing interests.
Tendele's alleged non-compliance with other statutory requirements, as was also raised by the applicants, also would have formed part of Bam's judgment, with many of these issues intended to be resolved during the remitted appeals process.
Tendele welcomed Koen's judgment.
Representing the applicants, Kirsten Youens of environmental justice law firm All Rise, said it was a travesty of justice for mining to be permitted without proper consultation and other key issues addressed first. Youens said she was consulting with her clients over a possible urgent application for leave to appeal.
