Sans Resettlement Action Plan: Tendele and Tharisa

In late August 2022, I attended a virtual public consultation meeting conducted by BlackRock Environmental’s Christopher Wright for Tendele Coal Mining’s Somkhele Mine’s scoping report.?

Petmin, which delisted from the Johannesburg Stock Exchange in June 2017, owns 80% of Tendele Coal Mining, with 20% held by a trust for the benefit of the local community and employees.?The extent to which the local community and employees actually benefit from said trust is a matter to be explored on another occasion.?The Somkhele Mine mines metallurgical anthracite and coal in KwaZulu Natal, South Africa.

The Somkhele Mine’s scoping report is essentially a fresh bite at the cherry for Tendele (and Christopher Wright) after the mine’s 2016 extension of its mining right was declared invalid on 04 May 2022.?Judge Noluntu Bam found that the mine’s public consultation processes were deficient and that they failed to obtain consent from affected communities.?For more information on the judgment, refer to this article.?

During the virtual public consultation meeting, Mr Wright indicated that Tendele implements its involuntary resettlement according to the IFC PS5, but when I asked whether the Resettlement Action Plan (RAP) is available, he said that no RAP exists.?He then started to explain that the resettlement process implemented by Tendele is different than what one would normally expect in a resettlement process.?And indeed what he described was so far removed from the PS5 (and the more recently published South African DMRE Mine Community Resettlement Guidelines), that the process implemented by the mine and the PS5 might as well be a description of two planets, one being Earth, the other Neptune.?Tendele's resettlement victims are people who live in a communal area largely controlled by traditional leaders.

Not so those who live in an area affected by Tharisa Minerals, where land is free hold (full title) ownership, meaning that the property owner has full ownership rights over the land and the buildings on it.?Tharisa Minerals is a listed company and a member of the Minerals Council of South Africa, which requires its members to adhere to the council’s compact.?Of course this compact is all a farce since most member mining companies, including Tharisa Minerals, gets away with figurative murder when it comes to their disastrous impact on affected communities.

In recent days I have come to learn that Tharisa Minerals, which operates the Tharisa Mine in South Africa’s North West province, is busy with underhanded tricks related to resettlement.?Even though the company knew since before 2014 that they would need to resettle, not only residents on surrounding farms but also the Lapologang and Maditlokwa communities, it has to date not even started proper consultation related to resettlement and a draft Resettlement Action Plan still does not appear to exist.?A previous article describes the company’s conduct towards the Lapologang community, and the poor living conditions in Maditlokwa community is captured in this TV programme.

For months Tharisa has refused to purchase affected farms at replacement value.?Now at long last there appears to be a realization by the company that it has to start paying replacement value for affected properties. But my relief at this positive turn-around was short-lived, because now they are insisting that the landowners ensure that the lawful occupiers on the farms vacate the property prior to purchasing the property.?This forces unethical landowners to evict lawful occupiers who should be benefitting from protections afforded to lawful occupiers under the Extension of Security of Tenure Act 62 of 1997 (ESTA) and the DMRE Mine Community Resettlement Guidelines.?

Tharisa gallantly offers to pay the moving costs of lawful occupiers on the properties and so through this action acknowledges that the purchase of the property is linked to involuntary resettlement due to mine expansion, yet the company will not follow the DMRE resettlement guidelines and provide the lawful occupiers security of tenure through a proper resettlement process.?

This trampling on the rights of lawful occupiers has already started with landowners sending tenants notices to vacate, despite landowners being made aware that what Tharisa is doing is contrary to resettlement guidelines. ?Landowners sending these notices to vacate cite their rights under laws that govern lease agreements, but conveniently forget that it is their obligation as landlords to maintain the upkeep of the property for the duration of the lease agreement.?Most of these property owners have not maintained their properties as these became more and more damaged by Tharisa’s mining activities.

Unless Tharisa starts behaving in a responsible manner, the only way that this situation will most likely be resolved is that tenants and other lawful occupiers will refuse to move citing their rights under ESTA and/or the resettlement guidelines.?The landowners will then have to go through the expensive and drawn-out process of evicting the lawful occupiers. An educated guess is that most likely the courts will refer to the lawful occupiers’ rights under both ESTA and the Mine Community Resettlement Guidelines because the sole reason that the lawful occupiers are being evicted is for mine expansion. Such a judgement will force Tharisa to resettle the lawful occupiers anyway.?So why not just act honourably from the start and produce a Resettlement Action Plan and start a proper resettlement process??

That’s what a decent company would do.??