On behalf of the AmaDiba Crisis Committee (the ACC) and its members, the Grahamstown office of the Legal Resources Centre filed a Notice of Appeal with the Minister of Minerals and Energy (the Minister) on 2 September 2008. The ACC requested the Minister to suspend and then appeal the decision, signed by the Regional Manager of the Eastern Cape (the Regional Manager), to award a mining right to Transworld Energy and Mineral Resources (SA) (Pty) Ltd. (TEM) (pending the determination of its appeal and ultimately requesting the Minister to set aside the Director General’s decision to grant a mining right.).

On 14 July 2008, the Director General decided to grant a mining right under the Mineral and Petroleum Resources Development Act 28 of 2002 (MPRDA) to TEM in the Kwanyana Block of the Xolobeni tenement area. It is anticipated that TEM’s Environmental Management Programme will be approved on 31 October 2008 and that the mining right will become effective on that date.

The Xolobeni area is the traditional homeland of the AmaDiba people, a traditional community under the leadership of King Sigcau and Queen MaSobhuza of Pondoland. The AmaDiba people have occupied the area for centuries, which area is part of the Pondoland region acknowledged to be one of the most important centres of plant diversity in South Africa. Since the land is registered in the name of the State, the AmaDiba community is deemed to be the co-owner of the land.

However, repeated requests by the LRC, on behalf of the ACC, to the various government offices involved, including the Department of Minerals and Energy (the Department), the Minister, the Director General and the Regional Manager, requesting information about and a copy of the decision to grant the mining right to TEM did not elicit a response. The Department failed to inform the ACC timeously of the decision or to provide the record of the decision.

Should the Xolobeni Mineral Sands mining project proceed as planned, the AmaDiba community faces permanent and significant changes to their traditional way of life and their connection with the land. Such changes would involve forced evictions, loss of access to farmland, meansincome and of subsistence, relocation of ancestral graves, destruction of culturally important archeological sites and negative impacts on the residents’ health and quality of life. In short, the mining will result in unacceptable levels of pollution and damage to the environment and its residents and will fundamentally alter the life of the community to its detriment.

In its appeal, the ACC submitted that the grant of a mining right without sufficient and reasonable notice to, consultation with or invitation for comments from the community, as an interested and affected party, is unlawful. A large number of community members directly affected by the mining were not properly consulted. The Traditional Leadership structures represented by the King and Queen and the Chief or Nkosi of the AmaDiba Administrative Area Lunga Baleni, son of the late Mshoba Baleni of the Amopondo, have been deliberately sidelined in the consultation process as they are opposed to the mining in this area.

The ACC’s appeal was also based on the grounds that the Xolobeni area is part of the Pondoland Marine Protected Area. Under the National Environmental Management: Protected Areas Act 57 of 2003, commercial mining cannot take place at all on any marine protected area.

The AmaDiba community also has a right to legally secure tenure of their communal land under the Constitution and the Communal Land Rights Act 11 of 2004. Therefore mining can only take place once a mining company has acquired a Community Resolution, which is issued by the Department of Land Affairs and the traditional authorities of the community, consenting to the mining and setting out the compensation to be paid to the community. Such a Resolution was not obtained.

Throughout the application process, TEM has inaccurately and misleadingly suggested that the Black Economic Empowerment company Xolobeni Empowerment Company (Pty) Ltd (XolCo), which holds a 26% stake in the project, represents the AmaDiba community. However, XolCo is a private company that is commercially reliant on TEM and does not and cannot represent community members living in the mining area.

The ACC also contends that the Director General was not properly authorized to grant this mining licence. The ACC requested that the Minister notify the LRC on their application to suspend the decision to grant TEM the mining right by 1 October 2008, and submitted that if the appeal to the Minister is not successful, it will be required to approach the High Court to set aside the decision to grant the mining licence.

The full text of the appeal is available on www.lrc.co.za

Posted on September 8th, 2008
Filed under: Press Releases