Residents go to court against anthracite mine

A court battle is underway between members of a community and an anthracite mine near Mtubatuba. The plaintiffs allege environmental damage, and that the mine is operating illegally, while the mining…

“I hate living next to this mine … It has brought nothing but devastation and hardship,” Sabelo Dladla declares in a court affidavit calling for the immediate closure of a major coal mine in KwaZulu-Natal that is alleged to be operating illegally.

Dladla, whose application to close down the Somkhele anthracite mine near Mtubatuba which began in the Pietermaritzburg High Court on Friday morning  says: “The tranquil rural environment that used to exist is being destroyed day by day. What was once a quiet rural setting alongside a wilderness area is now a vast industrial rock dump.”

The ancestral remains of several residents were also lost amid the open-cast mining operations, while others had been reburied in unmarked graves with their tombstones abandoned in a disused toilet block.

Dladla says several homesteads are cracking apart because of daily dynamite blasting at the open-pit coal mine. Several of his livestock have died or disappeared after wandering into mining land that had not been properly fenced off.

Life has never been the same 

According to him, life changed forever in the area, with many local residents forced to leave their land and homes to make way for mining. Residents lost access to fields for grazing their cattle, and other natural resources, and were worried about the risks to their health because of polluted air and water.

The ancestral remains of several residents were also lost amid the open-cast mining operations, while others had been reburied in unmarked graves with their tombstones abandoned in a disused toilet block.

Dladla argues in court papers that the mine is also operating unlawfully, allegedly with no environmental authorisation, no municipal planning approval, no waste disposal licence and no permits to relocate ancestral graves.

But the mine paints a vastly different picture in its court papers, denying that it operates unlawfully and arguing that nearly 1 000 mine workers would lose their jobs if the mine was forced to close.

Dladla, along with fellow Somkhele resident Billy Mnqondo and the Durban-based Global Environmental Trust (GET), stress that they are not seeking permanent closure of the mine but insist that the Johannesburg-based parent company Petmin, should comply with legal requirements rather than seeking to “fob off” complaints as something that should be weighed against advantages to the mining economy.

Dladla’s attorney, Kirsten Youens, contends that Somkhele is operating without environmental authorisation under the National Environmental Management Act, no land-use authority from local municipalities, no waste management licence and no written authority under the KwaZulu-Natal Heritage Act to damage, alter, exhume or remove graves.

The case

According to the plaintiffs, water resources in the surrounding area have been polluted from the blasting, crushing and washing of coal, generating liquid waste that can contain mercury, arsenic, nickel and other toxic compounds.

“The residents in the area of Reserve 3 are suffering irreparable harm. Our environment has been polluted by dust and noise and in many cases our homes have been moved or destroyed,” says Dladla, who is also concerned that expansions to the mine would “destroy the environment and the amenity of all who live there”.

“All the bush we relied on for firewood was fenced in by the mine or removed to make way for mining. Now we have to buy firewood”

He adds: “The sounds of blasting are massive and often no warning is given before blasting takes place. The quality of life has been changed forever … my family has been opposed to the coal mining since it started.”

According to Dladla his family lost two cattle (each worth R12 000) in 2014 after they wandered through a poorly-maintained fence to graze in the adjoining mining area. One was crushed by rocks and the other had to be killed after getting stuck in mud. He claims that 15 of his goats were also lost in the mining area.

“We have lost grazing and my cattle now have to graze far away,” he says, adding that his family could no longer collect rainwater in drums because the drums had become polluted by falling coal dust.

He also claims that residents have are facing water shortages due to the mine having sunk boreholes to supply its own needs.
What little water was left in the Umfolozi River is channelled towards the mine’s water pumps, leaving residents with “nothing”, according to Dladla.

“All the bush we relied on for firewood was fenced in by the mine or removed to make way for mining. Now we have to buy firewood,” he says.

“We are now seeking an interdict to ensure that Tendele Mines [the company that owns Somkhele] is fully compliant with the law.”

Sheila Berry, a trustee of the GET, which has joined the interdict application by Dladla and Mnqondo, says in court papers that there had been an increasing number of complaints of respiratory diseases, asthma and bronchitis among local residents, and that daily blasting shakes the ground for kilometres around blasting sites.

Berry said she had held several meetings with Tendele CEO Jan du Preez and former CEO Johan Gloy to resolve residents’ complaints. “Without being unfair, I can say Tendele have shown little regard for the concerns of the local communities,” she says.

Berry cites the relocation of several ancestral graves to other graveyards as an example. “This is a shocking (and) shows a lack of regard for the dead and for Zulu people’s deep respect for their ancestors … The graveyard is situated on a slope and consequently a few of the graves have been undercut by rain and are slumping. In some instances, it is possible to see parts of bodies.”

“Now some people cannot determine where their ancestors are buried as there are dozens of unmarked graves. Marble tombstones for the graves have been piled in an unused toilet block next to the graveyard. No attention has been taken to match the gravestones with the graves when they were moved,” says Berry.

Economic player

Responding in his court papers on behalf of Tendele, Du Preez says he would show that allegations that the company was operating illegally at Somkhele were “unfounded and incorrect”. According to him, Somkhele is one of the largest reserves of open-pit mineable anthracite and the main supplier of anthracite to South African ferrochrome producers.

He estimates the company employs more than 1 000 staff directly and about 200 people indirectly for services such as coal and passenger transport, and laundry.

According to Du Preez, there had been significant amendments to mining and environmental laws in 2014, but these amendments also contained transitional arrangements that allow companies to continue operations that were lawfully conducted prior to the amendments.

“By virtue of these provisions, Tendele’s mining operations remain lawful, notwithstanding that no environmental authorisation has been issued pursuant to the new dispensation.”

Du Preez says there were similar transitional arrangements that applied to the issue of municipal approval and waste permits.

On the issue of graves, Du Preez says Tendele accepts that it had previously removed or altered gravesites without the necessary authorisation from Amafa, the KwaZulu-Natal provincial heritage agency, though the company had held “lengthy consultation with the families concerned”.

According to him, Tendele has since engaged with Amafa to ensure its future activities were in keeping with the law. But even if the court were to find that any of Tendele’s activities are unlawful, this would not be sufficient to justify closure of the mine.

Beyond its role in providing jobs, the company also provides services to the community in the form of basic training and education, and has paid nearly R719 million in salaries in the 10 years between 2006 and 2016. 

In fact, Tendele argues, the harm to the broader Mtubatuba economy by closing the mine would far outweigh the “non-specific and generalised allegations of alleged harm” to Dladla and fellow applicants.

Du Preez suggests that Dladla, Mnqondo and GET failed to engage with Tendele or government departments in a “constructive manner” to reach an accommodation that protected the company’s mining rights.

He says the anthracite coal at Somkhele is a unique, high-quality variety and made up about 50% of such anthracite sold to local ferrochrome producers.

If Tendele did not supply anthracite to the local ferrochrome producers, he argues, it is likely that they would be required to import reductants to continue their operations, which could lead to a significant cost increase in ferrochrome production, a crucial component of stainless steel.

This, in turn, could result in retrenchments far beyond Tendele and negatively impact South Africa’s trade balance, with regional and national economic impacts.

Beyond its role in providing jobs, the company also provides services to the community in the form of basic training and education, and has paid nearly R719 million in salaries in the 10 years between 2006 and 2016.

The company has also built a soccer field and primary school for R10 million and provides potable water to local communities at a cost of around R100 000 per month.

According to Du Preez, Tendele has received letters of support from the local iNkosi, chief induna and municipal mayor, and from mining union shop stewards, church groups and other associations who were opposed to any attempt to close the mine, which would be the “death knell for the Mtubatuba economy”.

Tendele also denies that that its operations had left no water for the community, blaming recent water shortages on drought. It also denies that water is polluted and suggests cracks in surrounding homes could have developed for a variety of reasons other than Tendele’s blasting operations.

Dladla denies that he is seeking to shut down the mine permanently. Rather, he says he is seeking to ensure that Tendele complies with legal requirements. “To fob off all this environmental harm as something to be weighed against the advantages to the economy in mining is not acceptable,” he says.

“It cannot be denied that there are some people of influence in the region that support the mining. However, the mining has brought nothing but devastation and hardship to those (directly)  affected communities as opposed to those who live far away … Our lives have been turned upside down.”

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