Tendele's mining rights are "illegal and invalid" - however, legal rules are legal

Tendele’s mining rights are “illegal and invalid” – however, legal rules are legal

Tendele Coal Mining Company was slammed by a Pretoria High Court judge last year for its “outrageous” and “aggressive” behavior and for behaving like an “unruly horse”. But a Pietermaritzburg High Court judge has now ruled that the company’s mining rights remain legally valid, despite an earlier ruling that they were invalid and illegal.

In a 48-page ruling on July 13, Judge Pete Quinn appeared to acknowledge that his ruling could cause irreparable harm to many local residents and members of Mvuluzi’s community environmental justice organization (Mcejo).

However, in his view, he was required to adjudicate narrower legal issues in this case, rather than the conduct of the mining company.

His rule came after members of the Mcejo sought a ban to prevent Tendele from plowing new access roads, fencing the land and clearing the ground for new opencast mining in the Emalahleni and Ophondweni districts near the city of Mtubatuba. Until recently, Tendele was the largest supplier of anthracite coal to the South African iron industry, selling approximately 600,000 tons annually.

An outspoken critic of mining, Fikile Nchangas was assassinated at her home in Ufondweni in October 2020. (photo: attached)

As expected, Tendele welcomed the ruling and Mcejo expressed his disappointment — but the exact implications of the latest ruling on whether mining can now continue security-wise or indefinitely are likely to be moot.

Nearly 200 families are expected to be evicted from their rural homes and farms if the pits are opened — although Tendele argues that most have agreed to move or signed written relocation agreements.

“fair and equitable treatment”

Last year, Pretoria Magistrate Noluntu Bam declared unequivocally that many decisions made in Tendele’s favor by top government mining officials and the Minister for Mineral Resources were legally invalid – but refused to set aside some on the grounds that this was a case he called “pragmatic”. and “just and equitable treatment”.

Citing the “strong language” of his fellow judge, Quinn acknowledged that Pam had found some of Tyndell’s behavior during the environmental impact process to be “nothing short of outrageous”.

The attitude Tendele displayed during the scoping phase of the application process was “offensive” and also portrayed Tendele as a “wild horse” who showed little or no regard for the law.

However, Quinn said, although his fellow judge found the mining rights awarded to Tendele invalid, she stopped short of putting them aside – instead calling on Minister for Mineral Resources Gwede Mantashe to reconsider his earlier decision to reject an administrative appeal from mcejo.

But Quinn said this had caused potential ambiguity, as both Tyndale and Msigo interpreted the consequences of her ruling differently.

In the event of any ambiguity in her judgment, Pam was best suited to clarify whether she intended to continue mining operations temporarily, pending a subsequent appeal to the Minister.

Quinn said he called on both parties to approach Pam to clarify possible ambiguities in her ruling – a step that could have been achieved in terms of the court’s uniform rules.

“Unfortunately, but perhaps unsurprisingly, both (Mcejo) and Tendele gave their preferred interpretation of what the ruling meant and denied that there was ambiguity in the ruling. That was unfortunate.”

As a result, Quinn is put in the position of having to explain the meaning and effect of another judge’s ruling. In doing so, Quinn said he indicated that Bam had found “various glaring shortcomings” in the way mining rights were granted and therefore ruled them invalid – yet Bam is still far from putting decisions aside.

In the final analysis, he said that Pam’s statement that “decisions are not set aside” cannot be ignored, pointing out that the Constitution does not require invalid administrative acts to be set aside in every case.

For example, excluding invalid public procurement processes can disrupt important public services or affect public finances.

Avoid potential chaos

Citing case law and recent decisions of the Constitutional Court, Justice Cowen said mechanisms have been established that have allowed courts to avoid potential chaos in cases where an administrative measure is found to be illegal and invalid.

“This does not aim at legalizing an illegal administrative act. Rather, it prevents self-help and ensures orderly governance and management. Thus, administrative behavior found to be invalid, as Bam J found in relation to (Tendele) decisions, may nonetheless be ordered Continue to apply.

While this approach can lead to abnormal results, Quinn said the Constitutional Court has noted that “the apparent anomaly that an illegal act can lead to legally effective consequences does not consistently recognize easy and logical solutions. But the law often be a pragmatic combination of logic and experience.”

The constitution also provides legal powers for the courts to provide a “fair and just” remedy in cases where administrative conduct is found to be unlawful.

Because Pam decided not to set aside the mining rights to Tendele, the effect of her order remained final.

“But does it mean that Tendele can continue mining indefinitely despite decisions being declared invalid, and omissions that should have been complied with to grant a valid mining right?” Quinn thought.

Mcejo’s legal team submitted that if the decisions are not reversed, Tendele will be able to continue mining.

“So she was aware of that outcome. Despite that, she nevertheless refused to put aside incorrect decisions,” Quinn said.

“It is clear that (Justice) Pam, owing to the public interest in the continuation of the mining operation, wanted to organize the whole operation, if possible, by an abbreviated process, by providing for rights which had been violated in many cases when decisions were obtained, and to be properly reconsidered. right during the appeals process.”

It seemed clear that Bam did not imagine that mining operations (incorrectly granted) could go on forever. However, it did not set a deadline for the minister to resolve the appeal – and Quinn said he was not willing to go further in explaining his fellow judge’s intentions.

Minister holding a “potential cure”

But as a possible remedy to this ambiguity and uncertainty, Justice Cowen has suggested that he remain open to Mcejo and his fellow applicants to approach Mineral Resources Minister Gwede Mantashe and ask him to suspend mining rights in Tendele pending a decision on a formal legal appeal to his office.

(It’s worth noting here that Mantashe has been outspoken in his support for coal and fossil fuel extraction. In December 2021, he went so far as to describe objections to offshore oil and gas blasting tests as “Apartheid and colonialism of a special kindmasquerading as a great environmental interest.”

However, in Quinn’s view, it was Mantasche, “advised by the technocrats of his own circle,” who was best placed to make a provisional decision on suspending the rights to Tyndale’s.

If Mantach were to deny the request, Mesigo could appeal to the courts for temporary relief. The Minister will then be required to present the reasons for refusal of suspension to the Court “meaning that the Court will utilize the Minister’s reasons for its decision as well as an affidavit explaining why, in its judgment, the suspension should not be granted.”

In response to the ruling, Tendele CEO Jan du Preez said the judge confirmed that Tendele held a mining license and therefore You did not act illegally by sending a bulldozer and other heavy equipment to start demining operations for nearly two months.

“We are still working out the details; however, this finding is of great significance to the community that depends on the mine for their livelihood. Over the past 24 months, there has been uncertainty and distress due to retrenchment of about 1,600 individuals. We hope this ruling will bring the case to an end.” lingering uncertainty and contributing to the economic development of the region as we reach future mining areas, benefiting society over the next decade.”

But Mcejo, who is represented by All Rise Attorneys Kirsten Youens, called the ruling “extremely disappointing”.

“The Quinn ruling removes any fairness and compensation that Judge Pam has granted to applicants with respect to their right to public participation to inform decision-making… Environmental justice has not been achieved, and we are consulting with our clients as to the best way forward,” they said. DM


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