The battle between anti-mining organisations and Tendele Coal Mining in KwaZulu-Natal led to a major legal development for the mining regulatory system in South Africa.

The media reporting has so far focused on the fact that the latter won in the high court to con­tinue mining operations while the Department of Mineral Resources and Energy is overseeing the resolution of complaints against Tendele.

But, less acknowledged is the jurisprudence the court has developed. The case gave birth to the doctrine of pragmatism to solve competing interests between opponents and proponents.

For background, let’s recap in brief. Citing environmental concerns and a lack of community consultation, the five NGOs wanted to stop Tendele from expanding to new areas within the precinct of its mining license after it had depleted an old reserve. The mine retrenched 1 600 workers, pending the new development.

Working with the minority of the residents within the community of KwaSomkhele, the NGOs first approached Mineral Resources and Energy Minister Gwede Mantashe to complain about Tendele’s lack of compliance with environmental legislation. They wanted Tendele’s mining right to be revoked. The minister found in favour of Tendele.

Undeterred, the NGOs launched a high court application. The dispute came before Judge Noluntu Bam at the Gauteng High Court in Pretoria. During arguments, Tendele conceded that its public consultation processes on environmental impact assessment had fallen short. But it submitted that the shortcomings could be fixed. The company would address concerns if the matter was remitted to the regulator.

In his judgment, Judge Bam developed what I believe is important jurisprudence on the mining regulatory framework: the doctrine of pragmatism, but not without criticising Tendele for, among other problems, “egregious” conduct.

Judge Bam, in my estimation, had to contend with three major issues. First, she had to weigh competing rights and claims ranging from environment to socio-economic upliftment. Tendele had submitted to the court that it had, so far, pumped R2.2 billion into the local community, half of which was in salaries to employees, and the other went to community development projects. And downstream ferrochrome industries dependent on anthracite.

Second, she had to consider the implications of reviewing and setting aside the mining licence granted by the Department of Mineral Resources and Energy. Last, she also had to deal with the extent to which a court could intrude into the domain of the administrative or executive authority responsible for the granting of mining licences.

Judge Bam developed what one might call a two-pronged resolution. In the first part, she stated: “While a court must declare conduct that it finds to be unconstitutional invalid, it need not set the conduct aside.” In the second part, she stated: “This is a case that requires pragmatism to guide the court.”

She concluded that the matter ought to be referred to the minister for reconsideration of the appeal lodged by the NGOs in line with the findings of her judgment. This, in the judge’s view, would “strike a correct balance of the various contradictory interests.” In her 4 May decision, Judge Bam declared Tendele’s conduct invalid, but did not set aside its mining right.

In February 2023, Tendele gave notice to stakeholders, including the host community, of its intention to start mining activities. These would include building of access road and developing an open cast mine in portions of its mining right it believed were not impacted by the dispute.

The NGOs would have none of it. They ran to the court to stop Tendele from performing any mining activities. Tendele had support from trade unions, traditional leaders and the majority of the mine’s host community.

On the bench of the KwaZulu-Natal High Court was Judge Piet Koen, who heard arguments from both sides of the dispute. He made important points before he dismissed the attempt by the NGOs to stop mining activities in his judgment on 13 July.

One was that the court could not interfere with the pending decisions of the minister. Further, he clarified Judge Bam’s decision: although she had found Tendele’s conduct wanting, she did not set aside its mining license.

Koen further said the Department of Mineral Resources and Energy was best placed, given its administrative expertise, to hear all the competing interests and make an appropriate decision about the way forward. It was Judge Bam’s view that the department could remedy the defects in line with her judgment. Judge Koen referred to Judge Bam’s pragmatism approach, finding no fault with it.

It seems the NGOs were overzealous, excited about Judge Bam’s criticism of Tendele and forgot to read the key legal principles that Bam developed. Now that Judge Koen clarified these principles, the mining industry and regulators must appreciate the jurisprudence and act accordingly in the interest of economic growth, development and jobs.

My take from the outcome of this legal dispute is that courts do not want to be party to ideological campaigns against legitimate economic activities. The NGOs have adopted fundamentalist opposition to anthracite mining in KwaZulu-Natal. They used legitimate concerns, to which Tendele conceded, not for altruistic reasons but as an entry point for legal advocacy against mining.

It is satisfying to learn that our independent judiciary won’t be swayed into any ideological camp. Judge Bam developed the doctrine of pragmatism. Judge Koen clarified its meaning. The doctrine is a logical approach to arrive at conclusions that balance competing interests. It allows licensing defects to be remedied within the confines of the law.

This opinion piece was published in the Sunday Tribune: https://sundaytribune.zinioapps.com/article/sunday-tribune/2023-10-15-i626097/pragmatism-drives-solutions-to-mining-disputes-a20