23 May 2014 at 5:39 pm
In this opinion piece originally published on groundup.org.za, and in the Cape Times on 23 May 2014, CER Attorney Tracey Davies explains how the Batlhabine community fought back against a mining company that ignored the law. She also argues that the Department of Mineral Resources should have done more to help the community.
There are many communities all over South Africa that suffer from environmental devastation caused by nearby mining operations. Mining companies pollute water, create noise and dust, damage grazing and crop land, and generally display little regard for the rights and dignity of surrounding communities. These communities struggle to assert their rights against powerful corporate interests, and their attempts to get government help are usually unsuccessful.
Against the odds, however, the Batlhabine community, from the village of Tlhabine in Limpopo, has achieved a significant victory in this ongoing struggle between mining and mining affected communities.
In 2007, a politically-connected company, Blue Platinum Ventures 16, started mining clay in Tlhabine. It quickly became clear that the company was not operating according to the conditions of its mining rights. It was causing widespread environmental degradation, failing to rehabilitate the damage, and extending its mining operations to areas where it was not authorised to mine.
The Batlhabine community, plagued by the environmental degradation caused by Blue Platinum’s operations, especially severe erosion resulting from damage caused by mining, spent years trying to persuade the Department of Mineral Resources to take action against Blue Platinum.
Nothing happened, however, and as a last resort the community laid 14 criminal charges against the company and its directors for offences under environmental, water and mining laws, with assistance from attorneys at the Centre for Environmental Rights.
The National Prosecuting Authority ultimately agreed to accept a guilty plea from the managing director, Mr Matome Maponya, for contravention of the National Environmental Management Act. The Naphuno Regional Court in Limpopo heard evidence from the community and expert evidence based on reports commissioned by the Centre for Environmental Rights. The cost of rehabilitating the damage caused by Blue Platinum was conservatively estimated at R6.8 million.
In January 2014, Mr Maponya was sentenced to five years in prison, suspended for five years, on condition that he does not commit any further offences during that period, and that he rehabilitates the environmental damage caused by Blue Platinum’s operations within three months.
This is the first time in South Africa that a sentence of direct imprisonment, without the option of a fine, has been imposed on a director of a licensed mining company for mining-related environmental offences.
The Batlhabine community has been closely monitoring Mr Maponya’s compliance with the court order, but it appears that his attempts at rehabilitation so far are not in accordance with legal requirements.
In early May, Mr Maponya’s lawyers approached the court for an extension of time to complete the rehabilitation. The community is still trying to find out what the outcome of this court application was, as neither Mr Maponya nor the authorities has considered it necessary to keep the community informed about progress in this matter – yet another example of a chronic lack of respect for the rights of mining affected communities.
In the meantime, in May 2014 the community’s attorneys obtained documents from the Department of Mineral Resources (DMR) in response to a request under the Promotion of Access to Information Act. The request was made after the Department claimed that it had taken action against Blue Platinum, contrary to allegations by the community that its complaints to the Department were ignored. The documents show that the Department is right:
- In October 2011 the DMR issued a directive to Blue Platinum ordering it, amongst other things, to submit its outstanding financial provision for rehabilitation, and to immediately rehabilitate the damage caused. Blue Platinum did not comply.
- In early 2012 the Department then issued Blue Platinum with a notice of intention to cancel its mining right unless it complied with all outstanding orders. It did not, but it was only 18 months later, in September 2013, that the mining right was finally cancelled.
On the face of it, this action by the Department is encouraging. We know of very few instances where mining companies have had their rights cancelled, regardless of their transgressions. But it is extremely concerning that in spite of this action, Blue Platinum failed to comply with a single order from the DMR, and the DMR failed to take any further steps to hold the company or any of its directors accountable for their unlawful behaviour.
The mining right was cancelled, but only years after the company stopped mining anyway. The Department failed to obtain a cent of the outstanding financial provision for rehabilitation from the company, and, most importantly, failed to ensure that Blue Platinum fixed the damage it had caused.
The only reason that rehabilitation is now being attempted is because of the criminal charges brought by the community. This is action that the DMR should have taken, not left to the affected community, and the case raises serious questions about the ability and willingness of the government to enforce compliance with mining and environmental laws.