MCFMagaliesburg Community Forum
TAU INDUSTRIES’ PROSPECTING Applications: 1. Koesterfontein - DMR GP10498PR 2. Kaalfontein - DMR GP10505PR 3. Zuickerbosch - DMR GP10504PR
MAIN MCF COMMENTRARY DOCUMENT
06 Nov 2018
REV C001
Magaliesburg Community Forum [email protected]
Draft EIA/EMP Complaints and Comments // Magaliesburg Community Forum
Use of this Document
This document has been prepared by the MCF for the exclusive information sharing between the DMR and other state organs and decision makers to voice the concerns of the MCF’s members who form part of the Interested and Affected Parties of the three Tau Industries prospecting applications in the Magaliesburg region, which forms part of the Mogale City Local Municipality (MCLM). If there is a need to present any of this information to any other public or third party person (including the general public), a written response and approval must be obtained from the MCF prior to publication of this information, content and data, either in whole or in part.
The MCF reserves the right to amend, add additional comments, and raise additional concerns or provide updates where needed and / or not captured due to the time allowed to review all of the DRAFT EIA and EAP information. These documents should not be seen as complete and as either standalone comments or concerns of the MCF, their members and all the I&AP.
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MCF Ref: C001 TAU Industries – Draft EAP and EMP reports
Magaliesburg Community Forum
TABLE OF CONTENTS
1 Executive Summary ...... 3
2 Background on Gold Mining Impacts ...... 4
3 Who is MCF ...... 12 3.1 Our Aim ...... 12 3.2 At A Glance ...... 12 3.3 Mission Statement ...... 12 3.4 Objective ...... 13 3.5 Directive ...... 13 3.6 History ...... 13 3.7 Membership and meeting attendance ...... 13
4 Draft EIA/EMP Comments and complaints ...... 16 4.1 Introduction ...... 16 4.2 Timeline and 30-day Consultation Period ...... 16 4.3 Biased Environmental Assessment Practitioner (EAP) ...... 18 4.4 Local Employment Opportunities (SLP) – Expectation Created ...... 28 4.5 Logistics Study – Existing Infrastructure Impact ...... 30 4.6 Ecologist / Biodiversity Assessment ...... 30 4.7 Wetland Specialist / Assessment ...... 31 4.8 Hydrologist / Groundwater Level Assessment ...... 32 4.9 Trenches and Mobilisation of Heavy Metals / Other Acid or AMD Forming Minerals ...... 33 4.10 Activity and Prospecting Works Plan ...... 35 4.11 Alternatives ...... 35 4.12 Needs and Desirability ...... 36 4.13 Mitigations Proposed for LOW impacts ...... 37 4.14 High Level Comments on EIA Report(s) ...... 37 4.15 Policy and Legislative Framework...... 38 4.16 Rehabilitation Costs ...... 40 4.17 Land Use – Discussions and Legal Arguments ...... 41 4.18 PIOM – Prospecting not within 2km of Residential Area ...... 59 4.19 Mining and Biodiversity Guidelines ...... 59 4.20 National List of Threatened Species and Ecosystems ...... 61 4.21 Full Description of the Process ...... 61 4.22 TAU Industries Background and Experience ...... 62 4.23 TAU Industries and Gold Founders Financial Capabilities ...... 63
TAU Industries’ Prospecting Applications - via Joan Projects
MCF Ref: C001 TAU Industries – Draft EAP and EMP reports 1
5 ATTACHMENTs ...... 64 5.1 ATTACHMENT 1: Selected details of Tau Industries and Gold Founders: ...... 64 5.2 ATTACHMENT 2: Details with regards to the Magaliesburg Precint Plan 2011 ...... 70 5.3 ATTACHMENT 3: Selected Photos of the Koesterfontein area after first 20 mm rain for the season on 14/10/2018: ...... 74 5.4 ATTACHMENT 4: Boophane Disticha in bloom:...... 82 5.5 ATTACHMENT 5: Slow response of Dispute Resolution and DMR Governance: ...... 83
TAU Industries’ Prospecting Applications - via Joan Projects
DRA Ref: C001 TAU Industries – Draft EAP and EMP reports 2
// Magaliesburg Community Forum
1 EXECUTIVE SUMMARY
A separate document with a bullet point summary has been compiled and should be read in conjunction with this full commentary report. The bullet point summary contains 12 pages labelled in Greek numerical numbers to Page xii.
TAU Industries’ Prospecting Applications - via Joan Projects
MCF Ref: C001 TAU Industries – Draft EAP and EMP reports 3 // Magaliesburg Community Forum
2 BACKGROUND ON GOLD MINING IMPACTS Impact Photos – Legacy of Gold Mining in RSA (Long MSc 2018)
Gold mining in the Witwatersrand Goldfield started in 1886 and over the more than 130 years of mining history, in excess of 150 mining companies have mined gold from the Witwatersrand Goldfield (McCarthy and Rubidge, 2005; McCarthy, 2006, 2010). This has left many mine shafts and tunnels across the Witwatersrand exposed to air and water so that oxidation and secondary mineralisation along the wall rock developed. These mine shafts and tunnels do not have connectivity between the various Goldfields of the Witwatersrand, but connectivity within a single Witwatersrand Goldfield does exist. Therefore, when all mining and underground pumping within one Goldfield (e.g. the West Rand Goldfield) ceases, then the mine void floods (Department of Water Affairs, 2013). As groundwater levels rise, the water interacts with primary sulphides and secondary minerals in the presence of air to form acidic mine water.
The ore deposits in the West Rand Goldfield were the first to become uneconomic to mine and the mining companies in this goldfield ceased underground mining operations and groundwater pumping (Hobbs and Cobbing, 2007). This study focuses on the West Rand Goldfield, where groundwater pumping ceased in 1998 and the mine void space was allowed to completely flood, permitting discharge of acidic mine water to reach the ground surface in 2002 (Hobbs and Cobbing, 2007).
The first acidic mine water to reach surface in the West Rand was near 18 Winze (~7 to 12.5 ML/day) on the 27th August 2002 and later at 18 Winze (18 to 36 ML/day) in early 2005, (Coetzee, 2005; du Toit, 2006; Hobbs and Cobbing, 2007; Department of Water Affairs, 2013). The acidic mine water has continued to discharge into the Tweelopie Spruit at the boundary between the Randfontein Estates Mining Property (RE) with the Krugersdorp Game Reserve (KGR) (Hobbs and Cobbing, 2007). In 2007, it was reported that the Tweelopie Spruit had been transformed from a non-perennial to a perennial river (Hobbs and Cobbing, 2007). The acidic mine drainage has continued to discharge into the Tweelopie Spruit for a further five years as observed during this study in 2011-2012. Gold mining in the Witwatersrand has shaped the South African economy and allowed for the development of Gauteng and the South African economy (McCarthy, 2010; Durand, 2012). During the gold mining history in the Witwatersrand more than 150 mining companies have mined across the region, many of whom have since closed and cannot be held responsible, or financially liable for, the costs associated with AMD treatment (McCarthy, 2010). AMD is expensive to treat and owing to the long-term need for water treatment post-mining, there exists economic implications for providing water quality required to sustain and develop the economy in Gauteng and the North West Provinces, while also meeting the supply demands for residential, health, environmental and cultural use (Price, 2003; Hobbs and Cobbing, 2007; McCarthy, 2010). Water resources and water quality, are an important social aspect and are necessary to sustain the health of a population. This right is entrenched in the legal framework of South Africa as a basic human right (The Government of South Africa, 1996). There exists a large portion of the population who live in informal settlements and do not have access to municipal water services, and who therefore rely on the groundwater and surface water sources available to them. Across Gauteng and the Northwest Provinces, there exists large portions of the population who follow traditional and religious practices that make use of existing surface and groundwaters for religious and spiritual purposes (e.g. geophagia, baptisms etc., (Winde and van der Walt, 2004). Increased solute loads in surface waters, coupled with increased precipitation of “yellow boy”, or ochre, downstream from the mines presents environmental consequences (Goudie and Viles, 2016). Increased sedimentation within rivers modifies channel stability,
TAU Industries’ Prospecting Applications - via Joan Projects
MCF Ref: C001 TAU Industries – Draft EAP and EMP reports 4 // Magaliesburg Community Forum
channel width and bank morphology, which affects the vegetation and land use immediately adjacent to the river e.g. cultivation of crops, water abstraction and recreational activities (Goudie and Viles, 2016). River bed armouring from the precipitation of ‘yellow boy’ may influence infiltration rates and aquifer recharge downstream of mines (Goudie and Viles, 2016).
There exists a UNESCO declared Fossil Hominid Site of South Africa (FHSoSA), approximately 10 km downstream of the RE. The UNESCO site is locally referred to as the Cradle of Humankind World Heritage Site (COH WHS), which hosts the famous Sterkfontein caves where “Mr Ples” was discovered (Hobbs and Cobbing, 2007; Unesco.org, 2015; Maropeng - Official Visitor Centre, 2018; Tawane and Thackeray, 2018).
Various photos included below:
Figure 1 18 Wintze – Fenced off to prevent access. Mine waters has continuously flowed from this wintze since 2002 towards tweelopie spruit.
TAU Industries’ Prospecting Applications - via Joan Projects
MCF Ref: C001 TAU Industries – Draft EAP and EMP reports 5 // Magaliesburg Community Forum
Figure 2 CPS Pit used as settling pond. Water drains northward into Limpopo Water Management Area
Figure 3 Robinson Lake
TAU Industries’ Prospecting Applications - via Joan Projects
MCF Ref: C001 TAU Industries – Draft EAP and EMP reports 6 // Magaliesburg Community Forum
Figure 4 Lancaster Dam – Showing sand dumps on Mogale Gold Mining Property in background. Water drains southwards into Vaal Water Management Area.
Figure 5 Gully formation in soft sediment in the foreground of the Lancaster Dam. Water drains southward into the Vaal Water Management Area.
TAU Industries’ Prospecting Applications - via Joan Projects
MCF Ref: C001 TAU Industries – Draft EAP and EMP reports 7 // Magaliesburg Community Forum
Figure 6 Discharge Water from the headwaters into the tweelopies spruit
Figure 7 View from Road R24 mine water discharge entering the Krugersdorp Game Reserve (KGR)
TAU Industries’ Prospecting Applications - via Joan Projects
MCF Ref: C001 TAU Industries – Draft EAP and EMP reports 8 // Magaliesburg Community Forum
Figure 8 Start of the tweelopie spruit
Figure 9 showing the abundance of ‘yellow-boy’ / ochre precipitate forming the bedload in the channel, and coating the grasses along the channel banks, indicating the high-level water mark. The colour of ‘yellow boy’ / ochre varies owing to the chemical composition and mineralogy near tweelopie spruit.
TAU Industries’ Prospecting Applications - via Joan Projects
MCF Ref: C001 TAU Industries – Draft EAP and EMP reports 9 // Magaliesburg Community Forum
Figure 10 Bloubank spruit within COH WHS – Presence of “yellow boy’ / ochre is clearly visible within this river channel.
Gold mining can have a devastating footprint, and will destroy the receiving environment in the area. It should be noted that prospecting is the precursor to mining, and gold mining is not a desirable activity that landowners want in their immediate environment, especially looking at the legacy of gold mining on the Witwatersrand and the potential detrimental impact on the environment as well as livelihood (potable water, etc.) of all affected areas.
The EAP/EMP does not include comments from the applicant’s geologist but only states that the area is selected based on geology. Can the geologist and applicant kindly elaborate & share this information? The geologist at the SR public participation meeting commented that trenching is considered as the gold in the area is rather disseminated. The applicant then also made the comment that Anglo and other big companies already reaped the cream of the crop, and mined the obvious gold reefs (as mentioned during the SR consultation meeting). This information then translates for the MCF that in all likelihood the applicant and his geologist is expecting large patches of disseminated valuable metals, and in all likelihood would entail large open cast mining practices.
This will destroy the receiving and Magaliesburg environment, and will result in serious mining activities on the border of the Magaliesburg Biosphere and the COH WHS, and other affected parties in the larger surrounding area should be considered. Prospecting is done with the aim to ultimately mine which will lead to a mining development in the Magaliesburg environment having huge impacts on the environment.
TAU Industries’ Prospecting Applications - via Joan Projects
MCF Ref: C001 TAU Industries – Draft EAP and EMP reports 10
WHO IS MCF
// Magaliesburg Community Forum
3 WHO IS MCF
3.1 Our Aim The Magaliesburg Community Forum (MCF) has been established as an action group to identify key projects in our area (Magaliesburg West – Especially Koesterfontein, Kaalfontein, Zuickerboschfontein, Rietpoort, Migalsoord, Golden Valley, etc.) to partake in Interested and Affected Parties meetings and provide input thereby ensuring that the landowners interest with regards to the environmental impact studies (EIS) are considered, noted and captured. We might not be able to prevent a new activity in the area, but we can strive to ensure that all applicants comply with the various environmental laws and ensure that the mitigating factors proposed by the applicant is acceptable and sufficient to ensure reduced and minimal impacts on the environment as well as to ensure acceptable measures are in place as agreed per license award. The aim is also to ensure that all licenses awarded (or rejected) followed an in depth consultation and evaluation.
We can be contacted at the following email address: [email protected]
3.2 At A Glance We are a community group with proxy and mandates of our members in the Magaliesburg West region specifically (and only applicable) to the following subject areas:
1. Environmental – Participation in EIS (NEMA, DWS, GDARD, DMR, MCLM etc.);
2. Crime & Security – Assist with issues like illegal mining where owner is not physically present, but gave a specific instruction to act on a specific item – Then the mandate can be used to approach the SAPs on the landowners’ behalf, without him being present physically;
3. New developments – To ensure all impacts have been evaluated for all stakeholders and ensure all mitigating factors are relevant;
4. Conservation – To create awareness and ensure conservation of heritage (including Fauna, Flora, water resources etc.)
The MCF is an action group that will only focus on a set of activities. The mandates and proxies are restricted and limited to the activities that should be approved by the committee and accepted and presented at the monthly meetings as well as documented and distributed via the minutes of the meetings. All activities should be transparent to all members of the forum and are bound by the mission, vision and directive previously accepted by the forum community.
3.3 Mission Statement Coordinate matters and facilitate the resolution of any issues concerning the forum community and members’ interest in a beneficial manner that promotes and protects all stakeholders within the forum area in a sustainable and mutually beneficial manner.
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MCF Ref: C001 TAU Industries – Draft EAP and EMP reports // Magaliesburg Community Forum
3.4 Objective To promote, co-ordinate, supervise and secure co-operation with landowners co-operate fully with all other interested groups (FPA, SCF, etc) in its area and encourage joint action on issues of mutual concern.
3.5 Directive Serves as a coordinating body for forum members to deal with issues which have impact on landowners and authorized residents of the forum area.
The MCF is a focused action group that only targets a set of qualified tasks requiring a proxy or mandated unilateral voice as deemed executable by the executive (based on specific expertise and know-how of the members and committee) and based on a priority ranking and evaluation of all new action items.
3.6 History The MCF was initially called KAP (Koesterfontein Affected Parties) viz a small group of farmers in the Koesterfontein area that identified the need for landowners to unite and stand together to voice concerns unilaterally against any agricultural or business development. The development did not comply with the various environmental laws of the Republic of South Africa, and still wanted to expand the facility at the detrimental impact on the environment and neighbouring farmers, especially with regards to water abstraction and water use.
The effectiveness of working together was noted by the group and it was decided to grow the entity into a more encompassing body to represent a larger group of farmers/landowners in the Magaliesburg West region and also coordinate with various other existing structures and groups already established in the area. The KAP group was renamed to the Magaliesburg Community Forum (MCF). The group voted for an executive committee, and mandate and proxy systems were developed to empower the executive team to represent the group’s members.
3.7 Membership and meeting attendance The MCF is in possession of a total set of proxies and mandates for 38 properties which included various co-habitations of family, staff members & tenants
Our proxy databases can be accessed at the following link:
https://docs.google.com/forms/d/1HU9BlSMc2ZK-BOCwAVG5-OtRdymQQg1Aa87c0- eU_Ck/edit#responses
Note that the mandate database is kept and updated manually.
A master attendance list of all attendees of MCF meetings is detailed in the table below:
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MCF Ref: C001 TAU Industries – Draft EAP and EMP reports // Magaliesburg Community Forum
Name Surname Farm/Portion Number
Chris Van der Merwe Ptn 37 Koesterfontein (VK 20)
Barry Greyvenstein Ptn Koesterfontein (V05)
Nigel Naylor Ptn Koesterfontein (VK 25)
Willem Ferreira Ptn Koesterfontein (VK 22)
Mark Helfrich Ptn 27 Koesterfontein (VK 02)
Kurt Du Preez Ptn 42 Koesterfontein (VK 27)
Ian Holman Ptn 42 Koesterfontein (VK27)
Kevin Bottger Ptn Koesterfontein (VK 18)
Vernon Krause Ptn Koesterfontein (VK 10)
Jaco Du Toit Ptn 40 Koesterfontein (VK 03)
Mark Cinnamond Ptn 15&10 Koesterfontein
Kobus Koekemoer Ptn 20 Koesterfontein (VK06)
Johan Van der Merwe Ptn Koesterfontein (VK 20)
Wernherr Klopper Ptn Koesterfontein (VK19A/B)
Paul Redman (VK17)
Deon Niemann Ptn Rietpoort (VR 5)
Guy Jaucot Ptn Rietpoort (VR 02)
Pierre Coetzee Ptn Rietpoort (VR 11)
Anne Anholts Ptn 34/35 Rietpoort (VR )
Heather Rossouw Ptn Rietpoort (VR 14)
Neil Rossouw Ptn Rietpoort (VR 14)
Jan Janse van Rensburg Ptn Rietpoort (VR 27)
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MCF Ref: C001 TAU Industries – Draft EAP and EMP reports // Magaliesburg Community Forum
Hennie Janse van Rensburg Ptn Rietpoort (VR 44)
Melanie Janse van Rensburg Ptn Rietpoort (VR 44)
Werner Vermaak (VR05)
Pierre Coetzee (VR11)
Riaan Nel Ptn 6 Migals oord
Thys Van As Ptn Golden Valley (VG 28)
Christine Roos Ptn Golden Valley (VG 16)
Marius Lottering Ptn Golden Valley (VG 32)
Marius Van den Heever Ptn Golden Valley (VG 03)
Ben Erasmus Ptn 45 Golden Valley
Herman Haupt Ptn Sluis 18
Ross Combrinck Ptn 39 Sluis
Darren Boxan Ptn 57 Sluis
Eugene Roets Ptn 61 Sluis
Theo Van Rensburg Ptn 57 Kaalfontein (VC )
Nici Ellis Ptn 17 Vlakfontein
Rudi Baumgarten Ptn 44 Vaalbank
Otto Tanczos Ptn 4 Zuikerboschfontein
Steven Bothma
Sias Botha WRDM (7RM)
Robert Venema WWK1
Johan Oberholzer Ptn Hartebeesfontein
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MCF Ref: C001 TAU Industries – Draft EAP and EMP reports // Magaliesburg Community Forum
Active Proxy Per Property Portion Farm Description Portion Farm Description Portion Farm Description 2 Koesterfontein 44 Koesterfontein 6B Vlakfontein 4 Koesterfontein 45 Koesterfontein 14 Hartebeesfontein 5 Koesterfontein 83 Koesterfontein 36 Hartebeesfontein 15 Koesterfontein 5 Golden Valley 57 Sluis 20 Koesterfontein 6 Golden Valley 6 Migalsoord 28 Koesterfontein 17 Golden Valley 2 Migalsoord 29 Koesterfontein 63 Golden Valley 4 Zuikerboschfontein 31 Koesterfontein 12 Vaalbank (Platklip) 32 Koesterfontein 33 Vaalbank 33 Koesterfontein 34 Vaalbank 35 Koesterfontein 35 Vaalbank 35 Koesterfontein 34 Vaalbank 37 Koesterfontein 35 Vaalbank 39 Koesterfontein 38 Vaalbank 40 Koesterfontein 44 Vaalbank 42 Koesterfontein 54 Vaalbank
Total number of individuals present on all proxy properties: 303 individuals
Kindly note that this is a growing number. Membership grows on a daily basis as awareness and benefits of the MCF is realised throughout the MCF catchment area.
4 DRAFT EIA/EMP COMMENTS AND COMPLAINTS
4.1 Introduction A decision was made by the MCF at the June 2018 monthly members meeting to include the three TAU industries prospecting applications as one of the top priority action items on the agenda.
It was requested of Joan Projects that any meeting in person (formal and informal) with our neighbouring farmers and MCF members must be minuted and distributed to the MCF to have an open and transparent process and to ensure all community members have been consulted based on their needs. The MCF also requested that the three applications be handled as three separate proceses with separate meetings and discussions as there are different impacts and different neighbours / landowners involved (although most will be interested even if not directly affected by an application).
4.2 Timeline and 30-day Consultation Period Joan Projects still operate with the three applications as a unit or set. Most I&AP are working interested and affected parties and need private and spare time to work through the various
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MCF Ref: C001 TAU Industries – Draft EAP and EMP reports // Magaliesburg Community Forum
documentation (without compensation) to clearly understand the impact and the mitigating measures proposed. Typically, NEMA requires a 30-day consultation period, however, we now have a 30-day period to work through three applications that Joan Projects emails and supplies simultaneously with the same deadline. Yes, we understand there might be overlapping between the applications but we still need to work through the entire document set for each application. This is one way for Joan Projects and Tau Industries to put our layman’s resources under severe pressure, instead of allowing us reasonable time to work through the various applications individually. Most I&AP are normal working members of society with limited free time available to work through three applications simultaneously.
Furthermore, for public participation, Joan Projects typically (or previously) gave an overall ~2-3 hour presentation to the I&AP without having a working session to work through the various details of the report(s); also taking into account that not all our members are educated in mining, legal and prospecting disciplines. Thus, for true public participation we all require more time due to the workload and quantity of the documents and reports submitted by Joan Projects simultaneously. Furthermore, if there is more time granted, various workshops are recommended for the various applications, reports (different disciplines … i.e. Ecology, Heritage, Wetland, Hydrology, Geology, Transport, etc.) Also some of our members work overseas and can at times not be available physically. It is requested that the EAP allow dial-in facilities (like Skype) to ensure all members can attend and participate meaningfully for traveling members. Additionally, the small informal settlement community next to the Carmel Estate (as well as Ga-Mogale) has not been offered the opportunity to be consulted with according to our knowledge and information available. It is suggested to also include these community members in the public consultation process (even if transport, food and drink has to be arranged). The various disciplines mentioned take years to study at a tertiary education institute but it is expected to transfer knowledge and discussions with regards to impact on layman and expect them to contribute meaningfully without feeling intimidated and overpowered by the facilitators. MCF has previously asked the EAP to share the list of all RI&AP (registered Interested and Affected Parties) to ensure a representative list, with the lack of this information it is strongly suggested that this applicant can be regarded as non- transformational. Because of the PDI farmers, the EAP has to take special care to ensure they understand the application as well as the impacts (not only on the local environment but also the extended impact). This serves as another reason to separate the different applications and consultation and workshop sessions for each subject matter. When the MCF requested the EAP to do this the EAP replied that they do not conduct educational workshops, and all questions should be asked during the Q&A session they allowed for at the end of the public consultation meeting.
The knowledge of our members on these environmental and technical subjects does not allow for meaningful rational and thoroughly thought through replies and inputs based on individual (or self- study) of the information all dumped simultaneously on the I&APs and expect to reply within 30days (especially if only a 2-3 hour presentation session is allowed for public participation for three applications, and then expected to only ask questions at the small Q&A session afterwards.) People will feel intimidated by the information overload and will not meaningfully participate in the Q&A session. This will leave a feeling of the EAP tell you what will happen, what they believe the impact are and the public must just accept it. It is disappointing to note the lack of the participation of the informal communities and is a cause for grave concern to observe that the rights of the
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MCF Ref: C001 TAU Industries – Draft EAP and EMP reports // Magaliesburg Community Forum
black occupants, especially of the area around Koesterfontein Portions 11 and 22 (and Carmel Estate) appear to not have been considered, as the MCF could not find any proof that they have been included in the public participation process with proof that they clearly understand the impacts (from all environmental studies) and mitigating measures. This again confirms the anti- transformational approach of the current applicant.
The MCF therefore request the DMR to separate the three applications, give different 30-day consultation and comments period (non-concurrent) for review and insure detailed public participation workshops are scheduled for each application and each discipline within each application. With this, available time and daily work schedule of the MCF members should also be considered – Workshops on Friday Afternoons and Saturday Mornings at venues close to the affected area, also not on or before public holidays. If weekdays are considered, please consult with the MCF and our members, as we have various meetings for other subjects in our area, e.g. Crime Sector Forum (Different sectors), Fire Protection Agency (FPA), DWS and Magalies Catchment Forum with Department Water & Sanitation and various other meetings on weekday afternoons, thus please confirm availability with the MCF.
4.3 Biased Environmental Assessment Practitioner (EAP) MCF express our concern with regards to the independence of the Environmental Assessment Practitioner (EAP), Lufuno (Mugovhani) Mutshathama (also known as “Lufuno”) of Joan Projects (Pty) Ltd. Me. Lufuno was a former employee at the Department of Minerals and Energy (DMR) for a period of 3 years and 9 months between April 2008 and December 2011. See snapshot of her professional LinkedIn profile (https://za.linkedin.com/in/lufuno-mugovhani-43a71328 and https://za.linkedin.com/in/lufuno-mutshathama-0764915b), see Figure 11.
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MCF Ref: C001 TAU Industries – Draft EAP and EMP reports // Magaliesburg Community Forum
Figure 11 Lufuno (Mugochani) Mutshathama’s LinkedIn Profile (Accessed 09-10-2018)
It is postulated that an Environmental Practitioner who is also a former DMR employee, who can provide the added advantage to her clients that she can deliver successful applications as she knows the system and how the DMR system operates, has biased alliances or past connections. Lufuno therefore knows what to comment and what to say to favour a specific outcome. It is the MCF’s request that all applications by Me Lufuno be questioned. The details with regards to the lacking specialist study highlighted by MCF and our members were blatantly ignored. It is the MCF’s request that all applications by Me Lufuno be questioned. The MCF suggest an honourable alternative, like Nemai Consulting (they recently completed the Lanseria waste water treatment application and was unbiased and transparent throughout the process). Previously EAP arranged public participation meeting(s) either at venues so far away that the I&AP from the impacted area cannot attend or the postponed meeting was scheduled for a public holiday. After significant complaints, the EAP rescheduled to the day before the public holiday without consulting with the I&AP, where most of the MCF members were planning or departing on long weekends often planned weeks if not months in advance. It is the belief of the MCF that this was done intentionally to ensure low attendance and an easy meeting so that a requirement box of the DMR can be ticked-off.
The following is quoted from the CV supplied by the EAP in the draft EIA / EMP documents:
Name of the employer : Department of Minerals Resources Directorate : Mineral Regulation Job title : Environmental Officer Duration : September 2008 to December 2011
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MCF Ref: C001 TAU Industries – Draft EAP and EMP reports // Magaliesburg Community Forum
Duties : Environmental Management: Evaluation & assessment of EMPs, EIAs Scoping Reports, Performance Assessment Report, Closure Plans, rehabilitation plans Environmental Liability and other Environmental Technical Reports. Management of mining related impacts on the components of the natural environment. Compliance and enforcement of MPRDA 2002(Act no 28 of 2002), NWA1998 (Act no 36 of 1998) and NEMA 1998 (Act no 107 of 1998) through conducting Inspections, environmental monitoring & auditing Consult with relevant state departments that administer matters relating to the environment. Identifying area that are sensitive and protected before mining can resume.
Mineral and Prospecting Right Legal Tenure Assist clients with lodging applications on SAMRAD system. Capture mining spatial areas (polygons/ farms) applied for on the work -based GIS(ArcIMS) software for mining right, prospecting right and mining permit Digitising/geo-coding mining polygons Advice the regional manager on settlement and environmentally sensitive areas under the mining Application Give monthly statistic of all mining application in Limpopo
Name of the employer : Department of Minerals Resources Directorate Mineral Regulation Job title : Intern (Environmental & GIS officer) Duration : April 2008 to September 2008 Duties : Capture mining spatial areas (polygons/ farms) applied for on the work -based GIS(ArcIMS) software for mining right, prospecting right and mining permit Digitising/geo-coding mining polygons Advice the regional manager on settlement and environmentally sensitive areas under the mining Application
Additionally, we note the difficulty the EAP has had with the notification, the process, obtaining reference numbers, reaching the DMR, and the incomplete manner in which the SR was presented (many “unknowns”/”to be advised”), with many changes and updates done based on I&AP comments. Old or outdated or incorrect minutes of the meeting submitted previously to the DMR and even with the consultation notice to discuss the draft EIA / EMP, numerous registered I&AP did NOT receive the meeting notice or any draft documentation to review.
The handling of the public participation meeting – from its facilitation to incomplete initial version of the minutes (which were submitted to the DMR for the SR, not the updated version) – also adds to the discomfort with the experience of the EAP. Some members of the public were visibly distressed and confused at the previous public meeting. The EAP did not handle the more contentious conversations in a skilled manner, allowing some conversations to degenerate, with extremely poor public participation facilitation skills. The EAP did not handle the process as a two- way participation process but rather the EAP dump a significant amount of information without discussing the individual disciplines, subjects and discussion points for each application. The EAP rather targets to information overload, then only allow Q&A session, where most of the attendees then felt overwhelmed and cannot ask reasonable and applicable questions for each information sets relayed. Furthermore, to prepare a presentation and just dictate and read through it word for word without explaining or having an interactive session with the RI&AP are also unacceptable (This happened during the public participation meeting for the SR). Based on all the unexplained jargon and without giving the community an interactive session or workshop but rather the EAP read a presentation to those present with a host of acronyms and discipline specific jargon, and subsequently affected the participants in such a negative manner that no one wanted to hear this
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MCF Ref: C001 TAU Industries – Draft EAP and EMP reports // Magaliesburg Community Forum
information being read but rather wanted the skip to the Q&A consultative period where questions and clarifications could be asked. At the end of the meeting, limited time of the schedule timeslot was left to allow meaningful Q&A and participation, also especially because it was just before a public holiday, where most participants wanted to break for the long weekend.
Furthermore, the MCF is seriously concerned with regards to the logic, accuracy and science manipulated to support the underlying recommendation(s). Throughout this document it is evident that material evidence is ignored or tabled in a different light unless it favours the EAP’s client.
Attendance of the public consultations meetings were extremely poor. The MCF would like the EAP to officially present a list of all Registered Interested and Affected Parties (RI&AP) for review to ensure all parties (including PDI - Previously Disadvantaged as well as disabled individuals) were consulted based on their needs (and if all impacts and mitigation measure were explained and discussed in an encompassing manner), as formally requested from the EAP. The MCF would like proof that the EAP consulted with a representative sample of the Magaliesburg community, as their notification and information sharing techniques were experienced by the MCF as being sub-standard and poor for today’s day and age. It was noted that all emails were distributed as BCC (hidden) email recipients for all electronic public notifications after MCF requested a RI&AP register. The MCF only informed the EAP that the MCF represented a large group of landowners, but nowhere did we divulge member information, to ensure the EAP does not use a blanket statement that the MCF committee had been notified, thus all RI&AP were informed. The MCF beliefs that a community can respond unilaterally, but it still remains the EAPs responsibility to ensure individual communication and notification to all I&AP (Not only registered members) at all times. It is a concern that only limited members of our community had been contacted and that there was no proper consultation with a fully representative group of our community. Kindly indicate all consulted individuals (landowners, land occupiers, as well as direct neighbours) of the affected areas on the list of R&I&APs with whom the final results and findings of all studies, reports and documents were discussed. Kindly show proof of attendance or proof of interaction as well as proof of information discussed with each individual.
The MCF would further like to bring the following news articles with regards to the current EAP process and the effect and impact EAPs can have on Environmental Justice:
https://www.iol.co.za/saturday-star/news/too-often-environmental-impact-assessments- eias-are-tipped-in-favour-of-development-in-south-africa-say-experts-15102592
Quotes below:
As the Department of Environmental Affairs (DEA) celebrated 20 years of EIAs this week, a range of experts have revealed how it’s an “open secret” that many EIAs, a mandatory tool to advance sustainable development, too often take short cuts and favour developers.
“Environmental specialists are furthermore afraid of retribution from applicants and industries if they do not come to the conclusions in their clients’ favour,” says mining activist Mariette Liefferink. “There are cases of ‘blacklisting’ by certain applicants of specialists who have co- operated with us.”
The DEA acknowledges there are problems. “Despite the strides made towards an improved efficient and effective EIA system, there are criticisms and perceptions of inadequacy about the success of the current EIA system as a tool for environmental impact management,” it says.
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MCF Ref: C001 TAU Industries – Draft EAP and EMP reports // Magaliesburg Community Forum
For environmental lawyer Melissa Fourie, South Africa “needs to defend EIAs with everything we have” to ensure environmental justice. They are all that stand between South Africa and “complete and utter destruction”, she believes.
“Yet every year, we see more challenge, more review, more erosion of this framework, particularly in relation to EIAs, which already largely fail to consider the impacts of development on equity and on environmental justice.
“Even worse, we allow this system to be massively under- resourced, leaving environmental regulation to fewer and fewer government officials, often without basic support.”
But ornithologist Andrew Jenkins believes it’s almost always an “uneven battle”, tipped in favour of development.
“If the public thinks the welfare of the natural environment and how it’s being affected by development is being properly managed by the DEA and the EIA process, they’re very much mistaken.
“While the EIA legislation is pretty solid, in practice it’s severely compromised by a lack of capacity in government to actually properly oversee the process in terms of the rules,” he says.
“Specialists should be working on a completely independent basis and should be able to deliver whatever damaging findings they come up with but you’re either directly or indirectly in the employ of the developer. If you constantly tell them what they don’t want to hear, you’re out of work.
“When one’s findings are completely disregarded or rail-roaded by the developer, it gets frustrating and debilitating.”
Liefferink, who presented at the IAIA conference this week, concurs. “Currently all of the power lies with the applicant.
“The applicant pays for the consultants and the environmental assessment practitioner while the public lacks knowledge of specialised areas of investigation, the ability to employ specialists and thus the ability to consult in a meaningful manner.
“In essence, the decision maker receives one informed side of the argument and one uninformed side of the opinion. The playing field is not level.”
The controversial One Environmental System - in which the Department of Mineral Resources became the competent authority for the issuing of environmental authorisation for mining activities - has been developed with the interests of the mining business community in mind, she says.
“This is driving a shortening of the timeframes for environmental assessment, which affects not only environmental authorisations for prospecting and mining but all environmental assessments.”
Dr Ian Little, a grassland conservationist at the Endangered Wildlife Trust, is setting up a national task team of key EIA businesses, NGOs and government officials, who will form part of a workshop early next month on EIAs.
“We know enough to know there’s a big problem with EIAs. The obvious problem is the lack of objectivity in the process. The developer pays the consultant and the consultant pays the specialist and that in itself creates a perverse incentive. Specialist reports can be ignored and reappointed ...
“What needs to happen is strategic land use planning at a national scale to identify no-go areas and areas of high sensitivity.”
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MCF Ref: C001 TAU Industries – Draft EAP and EMP reports // Magaliesburg Community Forum
“Sometimes, we see adverts from environmental assessment practitioners advertising two EIAs for the price of one - people dealing in EIAs like a commodity. Some take specialists reports and water it down or fraudulently misrepresent the findings of scientific experts in their conclusions. We’re getting to situation where many practitioners are flying very close to the wind and we also see EAPs being gatekeepers of information.”
In a presentation to the conference this week, Ishaam Abader, the deputy director-general of compliance and enforcement at the DEA, spoke of how the quality of EIA reports “in certain instances left much to be desired”.
EIAs by themselves cannot achieve sustainable development. “(An) EIA for an individual development proposal is very site-specific and cannot, with some exceptions, in detail consider cumulative impacts on a provincial or national level,” he stated.
EIAs, argues environmental futurist Professor Nick King, are inadequate and outdated.
“In virtually all development decision ‘trade-offs’, natural and social capital are constantly degraded and lost.
“EIAs are currently conducted in a sustainability vacuum, project by project, which is resulting in the equivalent of the ‘death of 1000 cuts’ for natural systems.”
Instead, models that outline the environmental contribution of a new development should be sought, he believes.
https://cer.org.za/news/calling-on-environmental-assessment-practitioners-to-fulfil-their- role-in-advancing-environmental-justice
Quotes below:
On 17 August 2016, the head of CER’s Corporate Accountability & Transparency Programme, Tracey Davies, delivered the keynote address at the annual national conference of the South African affiliate of the International Association for Impact Assessment in Port Elizabeth. The theme of the 2016 conference was “Environmental Change & Challenges: Resilience, Adaptation & Sustainability”.
The address speaks powerfully about the importance of inclusive and participatory decision- making, objectivity and independence, and the ways in which Environmental Assessment Practitioners (EAPs) can both hinder and promote the realisation of environmental justice. We publish the address in part below.
“Good morning. It’s great to be here, and to have this opportunity to speak to you all today.
“The Centre for Environmental Rights, which some of you have probably heard of, or even dealt with, is a group of public interest environmental lawyers that help South African communities and other NGOs defend our Constitutional right to a healthy environment. While our work covers a broad spectrum of advocacy, research and litigation, our attorneys spend a considerable amount of time commenting on environmental impact assessment reports. Usually, this is with a view to objecting to a particular development which will have a severe negative impact on the environment, and therefore on the health and well-being of affected communities. In many of our cases, for example those involving mining in strategic water source areas or the construction of new coal-fired power stations, the impacts of these developments will have consequences far beyond the immediate vicinity of the project: consequences for the health and well-being of all South Africans, and for our ability to mitigate the effects of, and adapt to, climate change.
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MCF Ref: C001 TAU Industries – Draft EAP and EMP reports // Magaliesburg Community Forum
“When I was reading the programme for this year’s conference, which is packed with sessions with extremely interesting titles, it nevertheless struck me that almost all of the session topics are extremely technical in nature. Which is not, of course, surprising, given that the field of impact assessment is so heavily reliant on technical and scientific expertise. But I was saddened to see that there are really no sessions discussing what I will call the human element of environmental impact assessment: firstly, inclusive and participatory decision-making, and secondly, objectivity and independence. These foundational pillars of our environmental regulatory system are pivotal: when they are absent, we cannot hope to achieve “sustainable development”.
“So I would like to set aside the scientific and technical elements of impact assessment for half an hour, before you immerse yourselves in those over the next 3 days, and, if you will bear with me, to take you back to the legal principles which form the foundation of all of our professions, and of course the constitutional environmental right – on which these legal principles have been based. I would also like to share with you some of our perceptions and experiences of environmental impact assessment in the work that we do, and appeal to you to bear these in mind when you are out in the field.
“The first national environmental management principle in the National Environmental Management Act is that:
Environmental management must place people and their needs at the forefront of its concern, and serve their physical, psychological, developmental, cultural and social interests equitably.
“The NEMA principles also require that “sustainable development must include the participation of all interested and affected parties, and that decisions must take into account their interests, needs and values”.
“The Environmental Impact Assessment Regulations make it the first requirement of an environmental assessment practitioner that he or she be independent. They also require that the work of an EAP is performed in an objective manner, even if this results in views and findings that are not favourable to the application.
“The Code of Ethics to which all members of the IAIA subscribe requires that members must “at all times place the integrity of the natural environment and the health, safety and welfare of the human community above any commitment to sector or private interests”.
“It is clear then that people, and objectivity, are at the core of effective environmental management. And yet in our work we see so many cases where the people whose environment and well-being will be negatively affected by a development have been relegated to a footnote, a box to be ticked, and where the requirement for objectivity and independence has been discarded altogether.
“Our overriding goal at the Centre for Environmental Rights is the achievement in South Africa of environmental justice. Environmental justice is commonly defined as “the fair treatment and meaningful involvement of all people regardless of race, colour, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.”
“South Africa’s history is partly a story of the denial of environmental justice to the vast majority of the country’s population: those who have suffered the brunt of the negative environmental impacts of industry, mining and agriculture are also those who were denied their basic human rights under apartheid.
“Our Constitution makes the right to an environment not harmful to health or well-being a fundamental human right. This was a hugely progressive move – there are not all that many
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MCF Ref: C001 TAU Industries – Draft EAP and EMP reports // Magaliesburg Community Forum
places in the world where this is the case. Unfortunately though, for very many South Africans, this right is far from being realised, and, in some cases, is increasingly being eroded.
“Environmental justice is also a prerequisite for sustainable development: we cannot ensure that development serves present and future generations, which is the goal of sustainable development, if the poorest and most vulnerable of our people are denied environmental justice.
“You may ask why the goals of an environmental justice organisation are relevant to you. You may see yourselves as technical experts, whose job has nothing to do with achieving justice. But in fact, you are the gateway to environmental justice, and therefore to sustainable development, because of the crucial role that you play in decisions about development in South Africa. This role gives you an extraordinary power over the fate of the environment, and of people affected by development, and with that power comes a great responsibility: the responsibility to set the stage for environmental governance that treats all people fairly and equally.
“Of course it is our government decision-makers who have the ultimate say on what development happens where. They too have a great responsibility, and are obliged by law to realise and protect the right to a healthy environment in a way that you are not. But we have to be realistic about the capacity and resources of these decision makers. The conclusions and recommendations of an environmental impact report hold enormous sway – we very seldom see examples of decisions in which an EIA report has been critically and meaningfully assessed, and its recommendations and conclusions rigorously tested or challenged by decision makers.
“This is particularly the case in the mining industry, and the introduction of the so-called “one environmental system” will only exacerbate this problem – we have already seen examples of this in our work. Governance weaknesses, unfortunately, increase the burden on you, and on civil society, to ensure that decisions are based on fair and objective assessments which properly incorporate the concerns and knowledge of interested and affected parties. The decision-makers in government who are empowered to make these decisions rely on you for the technical expertise to inform them: if you tell them that something will have no serious impact on the environment, or that any impact can be mitigated, they are almost certain to act accordingly.
“It is simply not enough to say that if people are unhappy with a decision, they can appeal it or review it in court: these processes are insanely resource and time intensive, completely unfeasible for most people, and even when they are successful, by the time they are resolved, whatever damage to the environment they are aimed at preventing has already taken place.
“So, let me get back to those two crucial elements of EIA: public participation, and objectivity and independence.
“In our experience, too many environmental consultants approach the issue of public participation in a cursory and defensive manner. Instead of seeing interested and affected parties as valuable contributors to the EIA process, they see them as a frustrating obstacle to the completion of their task. It is, of course, much more difficult to deal with people than it is to deal with an environment that cannot speak up for itself, especially when those people are scared and confused about what might happen to the places where they live. But we seem to have forgotten that it is not the people with the most impressive degrees or most extensive technical experience who can fully anticipate the impact of a development on its receiving environment; rather, it is the people who have lived there for decades or generations, and who understand the ebbs and flows of the natural systems around them. It is also often these same people who are least equipped to deal with the technical complexities of EIA, and who most require the help of the assessors to guide them through the process.
“And yet, time and again, we see public participation registers that form part of environmental impact assessment reports where the comments of interested and affected parties have simply been recorded and “noted” in the comment and response report, but have clearly played no part
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MCF Ref: C001 TAU Industries – Draft EAP and EMP reports // Magaliesburg Community Forum
whatsoever in the final conclusions and recommendations of the report. I cannot emphasise enough how much resentment and distrust this practice creates: across the country there are communities whose members have spent enormous resources of time and energy trying to ensure that their input is properly taken into account in EIA processes, but who have absolutely no faith in the system or its practitioners because they have experienced first-hand the contempt for their views and values. And the poor practices of those EAPs who do approach public participation in this way have a devastating effect on the reputation and credibility of those who are committed to the principles of inclusive environmental governance.
“And then there is the question of independence and objectivity. In this respect, our system of environmental impact assessment places those who are responsible for EIAs in a very difficult position: they are required to be independent, and to express their conclusions regardless of whether or not they favour the application, and yet they are commissioned and paid by the applicant, and their chance of future work depends on the product they produce for those who are paying them.
“Out of this system has arisen the situation in which we now find ourselves: where it is distressingly rare to see an EIA report in which the conclusion is that a development should NOT go ahead, or at least should not go ahead in a particular location. Often, the specialist studies which form part of the report, when taken together, clearly point in this direction. Notwithstanding this, the conclusion is that any and all environmental harms can be mitigated to the extent that there is no reason why the development can’t go ahead. And everyone sitting in this room knows firstly, that not all impacts and harms can be mitigated and secondly, that the kind of close monitoring of compliance required to make sure that mitigation measures are continually implemented is remote. Of course development must happen, and there are many instances in which harmful impacts can and must be accepted. But sustainable development demands that we do sometimes say “no”: no to another mine, another road, another power station, another factory, another mall.
“I will give you two examples that we have come across in our work – without mentioning any names of course – to illustrate the problem.
“Firstly, in a case that the CER is currently involved in, the EAP appointed by a company applying for multiple prospecting and mining rights states on his CV that he was previously employed by the company applying for the rights. His role with the company was as its “Principal Geologist and Superintendent”, and he was responsible, in his words, for “directing company decisions and implementing strategies with the managing director.” But neither the EAP, nor the DMR, see this as an obstacle to independence.
“In another of our current cases, the Department of Mineral Resources has granted a mining right to a company that wants to develop an underground coal mine in a protected environment. The land which is the subject of the right is situated in an area of critical hydrological importance and biodiversity, composed mostly of wetlands, pans and endangered grassland ecosystems that support endangered species. It is also the source of three major rivers, and has been classified as a strategic water source area, a national freshwater ecosystem priority area, and an aquatic critical biodiversity area.
“The environmental impact assessment report which was submitted as support for the mining right application concluded the following in relation to the application: “the impact on biodiversity due to an underground mine is limited to surface infrastructure and some depletion of water” and that “coal mining will provide a welcome relief in terms of the current account balance, job creation and poverty alleviation”.
“Even more extraordinarily, the mining company had actually previously commissioned a different consultant to do the EIA. This consultant had carefully considered the potential impacts of this
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MCF Ref: C001 TAU Industries – Draft EAP and EMP reports // Magaliesburg Community Forum
application, and the cumulative impacts of similar future applications in the same area, and concluded that the area should be designated a “no go” for mining.
“Imagine a world in which this was a common occurrence. Imagine a world in which the proponents of that mining project could not discard this first report, and go out and hire someone who would come to a different conclusion. Imagine a world in which we could be secure in the knowledge that our nature reserves, world heritage sites, wetlands, marine protected environments, strategic water source areas etc., would remain protected, instead of being under constant threat of destruction. A world in which those of us – all of us here – who work in the environmental field could dedicate our time and energy to valuable projects aimed at achieving sustainable development, rather than spending all of our time and energy fighting the fires of inappropriate development.
“The private sector, of course, also has an essential role to play if we are to realise the goals of sustainable development. Unfortunately, though, corporate South Africa is not yet anywhere near the “responsible environmental citizen” it so often claims to be. The CER’s corporate accountability programme released a report last year called Full Disclosure: the truth about corporate environmental compliance in South Africa. The report assessed the extent of environmental compliance of 20 listed companies with serious environmental impacts. All twenty of these companies had regularly appeared on the JSE’s “Socially Responsible Investment Index”, which purports to recognise companies that manage their environmental, social and governance impacts well. All of these companies also make lofty claims to their shareholders and their customers about their commitment to sustainability and environmental compliance. Despite all of this, we found that many of these companies had committed multiple serious breaches of environmental laws, and furthermore, had failed to disclose these breaches to their shareholders.
“It is clear that initiatives like the JSE’s Socially Responsible Investment Index, the Mining & Biodiversity Guideline, and the multiple other voluntary codes and initiatives that the private sector signs up to, have in fact made very little difference to the actual behaviour of many of South Africa’s most environmentally damaging companies: they continue to break environmental laws and they continue, at what seems to be an ever increasing rate, to expand their operations in ways that severely compromise our ability to achieve sustainable development or even begin to adapt to and mitigate the effects of climate change.
“No-one can deny the multiple constraints under which you work: short time-frames, poor decision-making, weak compliance monitoring and enforcement of environmental compliance, difficult locations, demanding clients – to name but a few. Certainly, it is neither your responsibility, nor is it even possible, for you to fix all of our environmental governance problems.
“But I would ask you to think beyond just the current contract that you are involved in, and to conceptualise the fact that at any given moment there are thousands of assessments going on all over South Africa, and that the cumulative impact of all of those recommendations will fundamentally transform the nature of our country: whether this transformation is for the better or for the worse, depends in large part on the extent to which inclusivity and integrity inform the conclusions of each of those assessments.
“My plea to you today is also that you always bear in mind that the role you play in environmental governance is crucially important, and that if you take the views of affected people seriously, and incorporate them into your conclusions and recommendations meaningfully and respectfully, and if you maintain your independence, and express your true conclusions regardless of their impact on the application, you will already be contributing to vastly improved environmental governance in South Africa.
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MCF Ref: C001 TAU Industries – Draft EAP and EMP reports // Magaliesburg Community Forum
4.4 Local Employment Opportunities (SLP) – Expectation Created It is advocated that TAU Industries’ prospecting activities can bring thousands of job opportunities.
To quote the Applicant from the previous public participation meeting’s minutes (the updated version):
GVS: “So, the value added would be that if we prospect and find out from the prospecting results that there is future planning for gold and we can feasibly mine for about 50-65 years. Then we will be able to create employment (approximately 6000 jobs), therefore the Magalies community will benefit from it and that is the magnitude of the benefit.”
GVS: “We do not do anything unprofessionally and unlawfully, especially with the SLP (Social Labour Plan) we do everything accordingly, we will promise what we can deliver.”
Comment:
The Public Participation Guidelines, 2012, notes that interested and affected parties may be a resident in close proximity to the proposed activity.
Section (2)(4(f) of the National Environmental Management Act provides that the participation of all interested and affected parties (I&APs) in environmental governance must be promoted and all people must have the opportunity to develop the understanding, skills and capacity necessary for achieving equitable and effective participation, and participation by vulnerable and disadvantaged persons must be ensured.
The Department of Environmental Affairs (2017), Public Participation guideline in terms of NEMA EIA Regulations, Department of Environmental Affairs, provides that where potential and RI&APs include historically disadvantaged communities, or people with special needs (e.g. a lack of skills to read or write), public meetings should be considered. Nowhere in any of the documentation could proof of this be found or identified.
Table 1 of the Department of Environmental Affairs (2017), Public Participation guideline in terms of NEMA EIA Regulations notes that where the anticipated impacts of the project are likely to extend beyond the boundaries of the local municipality, formal consultation with other affected municipalities should be carried out during the public participation process (PPP).
The aforesaid Table further notes that if the area already suffers from socio-economic and environmental problems (pollution) and the project is likely to exacerbate these, “extensive consultation with RI&Aps within the area should be undertaken”.
The aforesaid Table also notes that if there is high unemployment in the area, the PPP should ensure that there are no unrealistic expectations created due to the project & the consultation should ensure that any unrealistic expectations are adequately addressed before the project starts.
Kindly note that labour opportunities discussed should be limited to the prospecting works and directly relevant to the current prospecting application. Statements like quoted above created the impression of a significant amount of labour opportunities, that cannot be confirmed with a high degree of certainty. The applicant is only applying for prospecting but already created the potential impression at the former Public Participation information session of the SR that there could
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MCF Ref: C001 TAU Industries – Draft EAP and EMP reports // Magaliesburg Community Forum
possibly be 50-65 years of mining (With comments about Anglo taking cream of the crop, and that the gold is highly disseminated, this is highly unlikely). The comment of creating employment of approximately 6000 jobs is also related to the mining and not the prospecting application. We ask the applicant as well as the EAP to refrain from quoting number for unknown mining possibilities that cannot be backed by facts, data and information for the current application.
We request that this statement and information should be followed-up and the I&AP and community should be told and informed of what the certain job opportunities with the current prospecting application would be. What the certainty / uncertainty will be by actually providing these job opportunities and what is the likelihood of it realizing. Comment on the current information available and current facts on the table of how sustainable these prospecting job opportunities would be and for what durations (that of the prospecting application and can the prospecting work end before the application period expires?)
How can Mr GVS (Applicant) comment on the “Magnitude of the benefit”, and on what scientific facts did he base that comment. Again, it creates expectations [associated with a very high uncertainty] (especially at this stage based on current information available).
What will happen with the job opportunities if the prospecting proves not to be successful? Will the prospecting job opportunities be available for the full 5 year application period?
What will happen if the prospecting is successful: Explain the risk that a mining right still needs to be applied for. Comment that there could be a phase between prospecting and mining application, where there will not be any significant job opportunities for the local community. Explain that the Applicant may not be the future mining right applicant
Kindly note that GVS commented that he will not do anything unprofessionally, especially with the SLP and “he will promise what he can deliver.”
Please comment on what job opportunities he currently offers that is based on the current prospecting application that he can deliver on and what the duration and current expected sustainability is based on information currently available, relative to the current tourism and agricultural businesses.
Note that the EAP frequently refers to I&APs that the comments should be for the prospecting and not mining right, so please only comment on labour for the prospecting and not mining right.
All I&AP and the local community should be made aware of this information, impacts and sustainability as well as what the uncertainty and risk associated with any related comments could be.
This was further detailed at the scoping level public participation meeting, where the applicant and his team admitted they had a cyanide processing plant together with huge trenching pits as part of their scope of work (and was subsequently removed (Cyanide plant), and reduced in size (pits) as requested by the DMR). The EIA report does not contain a SLP (Social Labour Plan), detailing the various employment opportunities, especially that discussed with the local community. Will skilled yellow equipment operators be imported or will the local community
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MCF Ref: C001 TAU Industries – Draft EAP and EMP reports // Magaliesburg Community Forum
receive training and employment opportunities? Please quantify and discuss as requested on numerous occasions.
The EAP originally said during the final public consultation meeting (at Ubuntu Centre) that a significant amount of employment opportunities will be available, and discussed the opportunity as a positive outcome. After deliberation with the attendees the EAP agreed that there could be minimal employment opportunities especially for the local unskilled community. The EAP further stated that the social and labour plan / hiring expectations of the applicant is not part of her mandate and experience to comment on.
4.5 Logistics Study – Existing Infrastructure Impact The PWP (Prospecting Works Plan) or discussion in the EIA draft report, neither supplies any details of how the samples from the bulk trenching will be selected nor what the quantities of the samples will be.
A logistic study was previously requested to understand the number of road (tar and gravel) users and what type of vehicles will be required by the applicant during his 5-year application period. This is required to understand and quantify the existing infrastructure impact. This should be evaluated quantitatively and not qualitatively as currently done. It is further suggested to visit the road infrastructure during the mid-summer / mid-rainfall period, to evaluate the state and impact on the current road infrastructure, which will not sustain additional wear (especially from yellow / heavy equipment).
We request that the applicant conduct a full civil and logistic study and take into account the current state of the public road (also commented on by the Wetland Specialist report that a review is required). Here the request is also relevant for any study evaluation to be done for both a wet and dry (winter and summer) condition.
Kindly note that we already have issues with dust generation on the gravel road running south but parallel to the R100, especially if heavy vehicles users are present.
4.6 Ecologist / Biodiversity Assessment The ecologist’s report (biodiversity assessment) appears to be done mainly as a desktop study. It was claimed that the fauna must be nocturnal thus the low occurrence observed during the various site visits (note that these were visits and are not referred to as studies). Furthermore, only limited fauna species (by means of dung or burrows) was identified. Although a thorough full list of fauna and flora is supplied at the end of the report, it is not clarified which are red data species (Secretary Bird, Blue Crane, Pallid Harrier, Melodious lark, and the Cape Vultures, etc.).
Red data species quoted in the ecologist report includes examples to mention but a few are the Blue Crane, and African Bullfrog has been observed in the area. Note that the list included the African Grass Owls and many other red data species. This has not been highlighted or discussed in detail by the ecologist. The breakdown in conservation corridors to allow for transmigration and genetic diversity of species. Failure to maintain these conservation corridors leads to genetic deterioration. None of this has been discussed or mentioned at all.
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MCF Ref: C001 TAU Industries – Draft EAP and EMP reports // Magaliesburg Community Forum
It should also be noted that the Ecologist visited the area late winter (~13 August 2018), where the majority of the Flora is not in bloom, migratory birds are not present, reptiles, amphibians and some animals were in hibernation and this is evident also from the winter photos of the specialist in his/her report. Note that our FPA (Fire Protection Agency – Sector 5) group commented that nearly 30,000 hectares already burnt by the time the ecologist visited the area. This is not noted anywhere.
It is suggested that the ecological study is repeated mid-summer, and during the high rainfall period of the Magaliesburg area and where most plants are in full bloom instead of arranging these studies where the least environmental impact can be observed. The EAP rather steamrollered the specialist studies and subsequent interpretation in order to submit a low or medium impact report to ensure a successful application for her / their paying customer / the applicant.
Furthermore, the ecologist did not spend more than a 1 to 2 hour guided site visit / tour by some (not all) landowners, and this seemed to have provided significant information for the ecologist to make his/her conclusions and call it a “Study”. This practice is questioned by the MCF.
The MCF (and advisory members) is of the professional opinion that it is necessary to assess over a minimum of two seasons (summer and winter); however, had the study been conducted in summer, reasonable conclusions could be drawn. The field visit is only part of the evaluation; given the type of habitat, and species observed to give a guideline, one can go to the literature and state what else is likely to be present. We reviewed some of the specialist reports ( Koesterfontein), where the need to check two seasons is mentioned - and ignored by the EAP. Field visit of 1 day per area is certainly insufficient. We find it hard to believe that the entire site was surveyed on foot in such a short space of time, presumably done by a single ecologist. Wandering around is not the best technique. MCF suggest to run a transect line through each vegetation type represented then do a species count in a 1 metre square quadrant every 10 metres - distance between quadrants depends on length of transect line. The value of the cultivated land to red data (and other) species cannot be assumed - they may be transit routes or foraging areas. The fact that emissions or groundwater pollution may affect the CBA or the ESA is ignored and not detailed anywhere in the specialist report. It worries the MCF that all risk goes down to "low" after mitigation - very unusual. The MCF seem to be seeing red data species among those listed in the specialist report Appendix.
Both the North and South banks along the Blaauwbank river encompass a large catchment area for direct rain run-off and sub-surface drainage into the Bloubank spruit (flowing into the Magalies River). The entire area under application(s) is a bucket which eventually empties into the Blaauwbank spruit. Tampering with these zones at the headwater section will potentially affect everyone within the application area as well as further downstream outside of the application(s) coverage area.
4.7 Wetland Specialist / Assessment The wetland specialist also did not visit all the farm portions. The EAP conveniently quotes the wetland specialist that prospecting can continue if all mitigating measures are adhered to, however, the EAP does not quote in their report that the wetland specialist stated on numerous points in his/her report the following: “A summer site investigation is recommended to more accurately assess the water environment. A winter assessment only is not adequate for the scope and potential impact of the proposed project.” and raised this as a concern or
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shortcoming, rather listed it as a specialist assumption. Note that our FPA (Fire Protection Agency – Sector 5) group commented that nearly 30,000 hectares already burnt by the time the wetland specialist visited the area. This is not noted anywhere.
MCF questions how the specialist as well as the EAP can state and quote that the prospecting can continue if mitigating measures are implemented but the full scope of potential impact of the project could not be evaluated in the winter assessment. Again various fauna is identified but none is highlighted as red data species, even though the landowners could identify various red data species listed on the list by the specialist ((Secretary Bird, Blue Crane, Pallid Harrier, Melodious lark, and the Cape Vultures, etc.) Also note the catchment area discussed in section 4.6’s last paragraph.
Based on the Kaalfontein sampled specialist report the MCF found the following: Recommendation for a summer evaluation has been ignored and is just bad science and practice not to do this. Furthermore, given that the site is extensive, one should be very hesitant to draw conclusions at all from short or 1 day type of visits to various areas. We believe the wetland specialist is gambling with chance when he states “no fatal flaws” when he/she admits the study is limited.
Further can be noted that the seepage area of the wetland specialist is not updated with the hydrologist measurements, see 4.8.
4.8 Hydrologist / Groundwater Level Assessment A hydrologist measured a few unequipped boreholes in the area and found the water table to be very close to the surface (especially around seepage wetland type areas) – Depths of typically 3 to 5m were recorded.
The hydrologist only documented temperature, depth and conductivity (mV) of the water in the limited boreholes available in the area(s).
The EAP again ignores the comment by the hydrologist that although he visited the area in the early spring period, there was still no rainfall or significant precipitation following the winter period.
The hydrologist quoted the seepage graph of the Wetland specialist and made similar comments that a WULA should be submitted due to seepage of water into the proposed trenches and pits.
Furthermore, the hydrologist had additional information with regards to the groundwater level to his disposal and still did not adjust the seepage area as originally drawn / determined by the wetland specialist. The one borehole right on the opposite side of the road at the south western edge of application GP10498PR, measured a water level of less than 5m. This indicates that the seepage area estimated by the wetland specialist is significantly larger than what he initially estimated or determined.
Rainfall will raise the surrounding water table even further and will increase the impact of sub- surface (seepage) and potential impact from surface water contamination as well as usability of existing infrastructure(s) due to flooding during high water table periods and the high banks on the side of the R100 gravel road. Note that the stormwater system and piping is choked and all the surface seepage collects on the road surface and makes it almost impassable. As a matter of fact, this effect is observed at various areas of the R100 road through Koesterfontein. During rain
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periods there are areas of the R100 (both Koesterfontein and towards Kaalfontein or Golden Valley) which are almost impassable.
4.9 Trenches and Mobilisation of Heavy Metals / Other Acid or AMD Forming Minerals The Wetland specialist indicated seepage zones and the potential high water table in the area stating that the applicant might have to apply for a water use license at the DWS (Department of Water and Sanitation) in order to pump the water from the pits / prospecting trenches. The EAP further stated that potential AMD (Acid Mine Drainage) will be monitored but does not specify how this will be done, what are the minimum requirements (analyses), frequency & methodology.
Furthermore, the EAP states that the applicant will backfill the material as soon as samples have been removed from the trenches. This material was disturbed and exposed to atmospheric and oxidising conditions which can give rise to mobilization of heavy metals and other acid or AMD forming minerals.
Minimum requirement will be to ensure all trenches are lined with a HDPE impermeable layer before backfilling.
The EAP states that the applicant will backfill with bedrock and topsoil and if material is not enough the area will be graded and sloped to leave behind an area with a safe slope to ensure previous land use & natural drainage run off This will leave behind a footprint and not restore the area to its previous capacity, especially with the high water level and seepage potential. If the applicant removes material, it is expected that the area is returned to the original state or improved even if additional fertile topsoil should be sourced and used to even and restore area in the state found or improved.
It should be noted, that the Applicant’s prospecting activities includes as stated “Non-invasive drilling” activities. Additionally, neither the applicant nor his geologist describe in any of the documentation why “Bulk Sampling” and trenching is required. Note that trenching has significantly higher impact on the environment, as material is removed, is moved and turned in an atmospheric environment (that the material would otherwise not be exposed to) and besides the oxidation potential of our atmosphere, there exists the risk that the underground water level and effect of seepage water and mobilization of any contaminant into existing potable water sources (for both animals and humans) becomes a significant risk. It is furthermore highlighted that the hydrologist measured high water levels further way from the wetland specialist’s seepage estimated area which indicates that the seepage and high water level area is significantly larger than what the wetland specialist originally determined.
It is unsure how the EAP can estimate the cost for rehabilitation of the trenches if they have no idea whether they will need a WUL, pump out water, line the trench, mineralogy of the trench (for AMD formation potential) nowhere is it quantified how much sample material the applicant and his geologist plan on taking and will thus require additional means/input to backfill the trenches.
Nowhere is the bulk sampling quantified. Here the MCF has serious concerns. If this is a mere prospecting sampling exercise, the applicant and geologist should be able to quantify the size of the planned bulk samples. Previously the Applicant and his geological team (as admitted at the previous public participation meeting – see updated minutes), that they had a gravity / cyanide processing plant as part of their equipment and prospecting plan. Additionally, these trenches
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were so huge that the MCF considered it to constitute strip-mining practices. It was clearly evident that the Applicant planned to mine material, process it on site and recover his costs and make additional money on the valuable metals recovered during the prospecting licence phase. After many emails to the EAP as well as the DMR with regards to trench sizes, DMR requested the applicant to reduce the size of the trenches to more realistic values. The DMR also asked the applicant to explain the purpose of the processing plant which the applicant now conveniently removed from the scope of work. The quantity of the ore to be removed as samples (or quantity per sample) should be stated or limited and form part of the license agreement (should the right be granted). This will prevent the applicant from venturing into and developing an economic business that is not considered prospecting and discovering and thus verges on the edge of conditions where he should apply for a mining permit or license and not conducting prospecting and sampling with sample analyses anymore.
It is the MCF’s opinion that the entire impact and review with regards to the bulk sampling and trenching has not been evaluated in detail enough to award a prospecting license. Furthermore, the EAP and applicant with his competent technical team, needs to provide details, not only for the trenching but for the estimated bulk samples to be removed. Then the full impact with regards to logistics and rehabilitation can be assessed. The MCF currently is of the opinion that if the DMR approves any license, considering all the impacts and mitigating measures, that only drilling and drill core samples should be allowed and no trenching and bulk sampling.
We object most strongly to the bulk sampling being requested. The sensitivity of the receiving environment is being undermined as is the Biodiversity and Mining Guideline completed with the concurrence of the DMR.
While the EAP “reassures” that this is ONLY prospecting, the impact of the bulk sampling is nothing like the impacts being described in the assessment and impacts of the bulk samples are not discussed in detail. The EAP and specialist actually require the applicant to conduct drilling and analyse the drill cores, in order to identify the ore mineralogy. Ore mineralogy is at minimum required to evaluate the potential of Acid Mine Drainage and the mobilization of heavy metals plus contamination of the surface and sub-surface waters.
The CA must restrict bulk sampling. As the applicant does not understand (or discuss) the underlying mineralogy based on less invasive techniques. The EAP only states that there is no no-go alternative, based on underlying geology but nowhere is this information shared, discussed and provided to shine some light on the site selection and the need for bulk sampling.
We note the commitment to provide an addendum to the Work Programme and the EMP for approval. We are distressed that there is a) incomplete information available now, b) fail to understand from the report the complexity that would prevent stipulating matrix and bulk mineralogy and effect of bulk sampling by means of trenching and the associated environmental impacts.
Information presented during public participation must be comprehensive. Here the most troubling aspects are not fully explained, quantified or revealed. It is disingenuous to have all the discussions with regards to impacts of bulk sampling and trenching (as included in the activities) as part of the prospecting plan whilst the full impact cannot be detailed. Thus no detailed impacts and rehabilitation requirements can be assessed. We cannot accept the comment from the EAP that the area will be monitored for AMD and corrective measure will be implemented. Once the
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material has been disturbed and exposed to an oxidising environment and heavy metals are mobilised, the bioremediation and remediation will not be able to entirely mitigate and stop the impact. The requirement is to have all the information available to assess the impact and then evaluate the mitigation measures included or offered. We cannot accept the reactive response currently offered by the EAP in this environment but rather require proactive response and if not possible then bulk sampling and trenching should not be included in the license until enough information is available to make the required assessment. This environment has a very high water table and seepage level and to manage and mitigate the contamination of the surface and sub- surface water used for both potable use of animals and human consumption.
If the impact of the trenching CANNOT be discussed and mineralogy cannot be provided at this time and the drilling based prospecting is authorised, the CA MUST ensure that a new EIA process commences to obtain and present information to I&APs and then to obtain the subsequent permission for trenching and bulk sampling.
4.10 Activity and Prospecting Works Plan The Prospecting Work Programme (SR) and activity discussion in the draft EIA/EMP document(s) fail to describe the technical abilities of the applicant to do this work and Tau Industries direct prospecting experience (if any).
We have not seen an updated Prospecting Works Plan (PWP), other than that submitted with the scoping report and the discussions in the body of the EIA/EMP report. The details of the PWP detailing not only volumes of the trenches but also mass of material to be removed (as well as mass to be moved off site) is not updated or discussed. Additional information is also required with regards to what happened to the processing plant that was originally included in the scope of work, was not clarified officially in the subsequent reports and documents.
Please refer to guidelines in this respect.
We cannot find a table for “competencies to be appointed”. Furthermore, nowhere in the reports can we find the inclusion of an ECO – so vital to the protection of fossils and biodiversity (as part of the listed core competencies to be appointed. EAP only mentions or recommends the appointment of an ECO.). Do we assume the ECO is not budgeted for?
4.11 Alternatives The EAP is required to assess REAL alternatives. If the applicant cannot just state that there are no alternatives as it is based on the site geology but nowhere is this detailed and explained based on technical, referenced and analysed information available to the I&AP or DMR to evaluate and assess. This is needed to understand this statement and the basis and details of the technical background and factual information to confirm this comment.
The I&AP also became aware that the applicant and EAP were also considering the following areas for prospecting based on “geology” for an unlodged application at the DMR but fails to include and discuss this alternative in the documentation: PLATKLIP 40IQ,VOGELSTRUISFONTEIN 34IQ, VLAKFONTEIN 37IQ, CYFERFONTEIN 35IQ,HAARTEBEESTFONTEIN 38IQ, BUFFELSFONTEIN 382JQ AND SYFERFONTEIN 34IQ.+ RIETFONTEIN 33 IQ, ELANDSFONTEIN 31 IQ. This progressed to such a level that the EAP provided the applicant with costs for the applications (with and without bulk sampling).
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MCF Ref: C001 TAU Industries – Draft EAP and EMP reports // Magaliesburg Community Forum
It is gathered that the EAP have not considered technological alternatives. As this application is on the corridor of the Magaliesberg Biosphere as well as the Cradle of Humankind World Heritage Site and within the tourist area of Magaliesburg, we look for innovation and exceptional fulfilment of the sustainability criteria in Chapter 2 of NEMA which describes the international commitment to be met, and which the CA has an obligation to ensure.
Avoiding the consideration of alternatives negates the principles and the requirements of NEMA.
The EAP FAILS to show the no-go alternative, the location alternative or even the appropriate (according to SDF and EMF) compatible activities of the region – see MCLM details in Appendix 5.2.
4.12 Needs and Desirability We refer the CA to the guideline on Need and Desirability. As the EAP is expected to take cognisance of all guidelines, we assume the EAP understands what is required in the application.
The EAP states the reasons for future mining. The EAP FAILS to address both the societal need for this development on this site and the desirability of the activity in the specific strategic context of the site.
The response is required to indicate what will be compromised for society as well. In this instance the EAP has failed to reflect the information the residents and IA&Ps have provided of THEIR aspirations, needs and interests. The EAP has failed to demonstrate how those needs of society will be compromised by this activity. Most significantly, the conservation of overall area’s critical biodiversity as well as ecological support areas (especially if all the red data species are highlighted [Secretary Bird, Blue Crane, Pallid Harrier, Melodious lark, and the Cape Vultures] and considered in the various specialist reports), recognised to be essential to the wellbeing of society as well as the effect on tourism in the entire Magaliesburg area, is negatively impacted by this activity. Not to mention the presence of other red data species, e.g. African Bull Frog, African Grass Owl, and plant species etc.
While the EAP continually minimises the impact as low or medium (based on reports and studies done during a time period where not all impacts could be assessed), we draw attention to prospecting as a LISTED activity – it is NOT considered to be without environmental impact. We take note of the fact that the impacts of BULK SAMPLING cannot be quantified but is listed on a qualitative basis and impacts should be controlled on a proactive basis rather than reactive.
The EAP might argue the impacts are insignificant and state the mitigation possible; this does not alter the strategic context provided by policies, frameworks and plans which the EAP DOES NOT ADDRESS. Nor does the EAP MOTIVATE why these important ecological support and agricultural assets are LESS important than providing for the economic needs of a handful of people for this PARTICULAR site.
The EAP’s need and desirability motivation falls far short of the requirement viz it fails the requirements. The Gauteng EMF is ignored, the Mining and Biodiversity Guidelines are ignored, MCLM’s RSDF is ignored, as is the Bioregional Plan. The guidelines are clear and unambiguous about the requirements of the EAP in relation to need and desirability – see MCLM details in Appendix 5.2. This EMP/EIA fails which means the CA has to do the research and work themselves, or reject the EMP/EIA.
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MCF Ref: C001 TAU Industries – Draft EAP and EMP reports // Magaliesburg Community Forum
4.13 Mitigations Proposed for LOW impacts The MCF further questions the typical practice by both the Wetland as well as the Ecologist / Biodiversity assessment specialist reports that recommends that prospecting can proceed “subject to mitigation”. If the mitigation is not implemented … then what? (Not included in rehabilitation cost calculations). Who will be appointed to monitor environmental compliance? The MCF request a compliance audit by the COMMUNITY at six-months intervals, in addition to that which the Applicant or EAP propose they should do internally. The community will ensure to include specialists in our extended “friendly” environmental conservation groups in and around Magaliesberg and Magaliesburg area and from further afield. It raised a serious concern at the last public participation meeting (at the Ubuntu centre) when the EAP said it will be the community members peril to monitor the applicant and report any non-conformances to the DMR using the same reference numbers. It was even stated that the community should record the number of trucks and trips executed by the applicant. Nowhere was it stated or discussed how any disputes should be handled (dispute resolution procedure) and how environmental conformance should or could be ensured. Kindly review the slow dispute resolution issues experienced with the current “Illegal” mining activities at and around the controversial “Protea Mine” in the Blaauwbank Area, see Appendix 5.5. It was further stated that the applicant will report his mineralogical and valuable metal finding to DMR annually, however the community was still not sure how the applicant could be trusted to do so without having a proper monitoring system in place (including review of all mineralogical and geological information) on a frequent basis to confirm conformance to the permit / license / EIA / EMP requirements and recommendations, especially if there is no community representation. Nowhere could any ISO (9000, 14000, etc.) registration of the applicant (Tau Industries nor Gold Founders) be found to ensure systems and reporting compliance in terms of environment, quality, etc…
How were the various buffer zones derived (especially for the winter assessments)? Now is accepted as best practice, the use of the method developed by MacFarlane and Bredin in their 2007 report “Buffer Zone Guidelines for Wetlands, Rivers and Estuaries”, as prepared for the Water Research Commission. Again the MCF emphasize that the area is huge, so a few days wandering site visit is insufficient for collecting enough data to reach any valid conclusions.
4.14 High Level Comments on EIA Report(s) The MCF specifically sampled the Zuickerbosch document. Page 23 – interesting juxtaposition of impacts which is easily overlooked It indicates low-ish impacts of prospecting and positive impacts of actual mining, overlooking the fact that if prospecting and future mining goes ahead, the whole character of the area will change and negative impacts will be huge.
The indication of the SR PP meeting indicates some political/racial divisions that need management. Sadly, the environmental conservation vs. jobs debate seems to follow the same divide. This is a huge complication and cannot lead to an objective EIA, even if the consultant is perfectly impartial.
It was sad that the EAP stated during the SR phase that no extensions on the scoping report were possible is untrue. One application in this area got an extension because the PP meeting was not adequately advertised and had to be rescheduled. Part of this unrelenting behaviour of the EAP not to accommodate the I&AP’s request and only drive the applicant’s application is another clear indication of EAP bias towards the applicant.
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MCF Ref: C001 TAU Industries – Draft EAP and EMP reports // Magaliesburg Community Forum
Conclusions are drawn from specialist reports which are inadequate in at least two cases.
Note again on P148, the occurrence of a risk or impact being “mitigated away” … This is too good to be true?
4.15 Policy and Legislative Framework The Constitution
The DEA with the concurrence of the DMR developed the Mining Biodiversity Guidelines which identify areas of high risk to mining, and areas suitable for conservation. The constitution assures citizens that there will be Conservation to protect the environment for future generations. The application site falls within the area for ecological support systems with all the red data species highlighted in the various specialist reports (E.g. some of the birds: Secretary Bird, Blue Crane, Pallid Harrier, Melodious lark, and the Cape Vultures, others like African Bullfrog, etc.), is high risk for mining, and yet, the EAP makes no statement on how this application is responding to the constitutional imperative (Not even to talk about the barbis Montebensis fish confirmed downstream in the Crocodile river system, etc.) The EIS/EMP report acknowledges that there will be pollution that cannot be prevented and needs to be monitored and dealt with in a proactive manner.
NEMA:AQA
The report states that there will be air pollution and that dust suppression will be required. The cumulative impact of air pollution is not discussed in the report. The DENSE population of Ga- Mogale is composed of vulnerable individuals as well and air pollution is a very serious impact on Gauteng communities. The EAP is required to consider cumulative impacts.
DIEM
The EAP was informed of the DIEM (Mogale’s Department of Integrated and Environmental Management)’s statement letter with regards to mining in the Magaliesburg Area.
Position statement of DIEM quoted below (54078 File Nr 17/29/3/2/54):
The historic town of Magaliesburg with its tranquil surrounds, unspoiled scenic vista’s and high quality landscapes is experiencing enormous pressure from several prospecting and mining applications.
Magaliesburg and its environs are highly popular eco-tourist destinations, and situated on the doorstep of the COH WHS. Hence MCLM’s Environmental Management Framework (EMF) is clearly depicting the “Desired State” as being:
Land Use: Tourism and united and prosperous agricultural sector – agriculture contributes significantly to job creation and economic development – High agricultural sensitivity o Maximise opportunities and reduce constraints in the agricultural sector o Promotion of more conservancies and protected areas with emphasis on ecotourism
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o MCLM’s unique sense of place Groundwater: Quantity and quality managed in a sustainable way Ridge Policy: Strict implementation of GDARD ridges policy – high sensitivity (red data species, sensitive vegetation) Surface Waters: Magalies River critically endangered; AMD threat Wetlands: Landuse change exposes surface water to new suite of threats
The EMF also states that “Mining” is considered as “Non-desirable Activities”
Magaliesburg and its environs is home to numerous red data (threatened) fauna and flora species as well as high quality grassland ridges, which are also highly threatened and protected by law.
This valuable tourism asset which reportedly already employs several thousand people and is constantly expanding will be irreparably ruined if mining (and indirectly prospecting) at this scale is authorised. Two river catchments, the Bloubank and Magalies river, which feed into the rest of Magaliesberg towards Hartebeespoortdam and provide fresh water for thousands of people downstream will also be destroyed by Acid Mine Drainage (AMD) pollution effects that is certain to follow such prospecting and mining activities. In addition valuable and productive agricultural land will ultimately be lost forever.
With regards to the CLASSIFICATION OF SIGNIFICANT WATER RESOURCES IN THE MOKOLO AND MATLABAS CATCHMENTS: LIMPOPO WATER MANAGEMENT AREA (WMA) AND CROCODILE (WEST) AND MARICA (WMA): WP 10506: INTEGRATED UNITS OF ANALYSIS (IUA) DELINEATION REPORT. REPORT No: DM/WMA1,3/00CON/CLA/0212. In this regard it should be noted that DWA has assessed the Magalies river as follows:
“The present state of the Magalies River is in a B Category, especially with Maloney’s Eye situated in the River upper reaches. The EIS is very high due to the presence of the rare Barbus Motebensis in the system. The Magalies river is an important provincial conservation area and has been identified as a sensitive catchment in the Gauteng conservation plan. The lower reaches of the Magalies and Skeerpoort Rivers are impacted by water abstraction for irrigation.”
Based on the above, DIEM commented in writing to DWA in July 2002 as follows:
“The present state of the Magalies River is supported. However, cognisance should be taken of the following:
Over abstraction and illegal abstraction of ground water from the Steenkoppies Dolomitic Compartment – which feeds the Malony’s Eye – raise serious concerns; In terms of Gauteng Department of Agriculture & Rural Development’s Conservation Plan Version 3.3, major areas associated with Malony’s Eye are defined as Irreplaceable Sites; This area is defined in terms of MCLM’s Spatial Development Strategy (SDF) and would potentially threaten the Class B status of the said river.”
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MCF Ref: C001 TAU Industries – Draft EAP and EMP reports // Magaliesburg Community Forum
One of the stated fundamental principles of the Minerals and Petroleum Resources Development Act (MPRDA) is to give effect to Section 24 of the Constitution. The minister of Mineral Resources is specifically tasked to ensure the sustainable development of South Africa’s mineral resources. The MPRDA states that this should be achieved “by ensuring that the nation’s mineral and petroleum resources are developed in an orderly and ecologically sustainable manner while promoting justifiable social and economic development.
Prospecting is a precursor to mining. DIEM will not be misled by these applicants and their consultants speaking of merely drilling a few holes for sampling. A document recently uncovered shows the full intention of these plans, several in the making, which speaks openly of an open cast mining project covering several hundred hectares of privately owned farm land, the exact lands where applications now have been lodged. One prospecting application already intends to remove bulk samples of 60,000m3 of soil, effectively a strip mine without the full blown mining license. A major open cast mining house was also recently spotted driving around the area and making stops to survey the area.
The constitutional Court recently gave down judgement on 12 April 2012 in the long-standing dispute on whether consent or authorisation is required in terms of land-use and environmental legislation for mining activities in the Maccsand Case (CCT 103/11 [2012] ZACC 7). The Constitutional Court has cleared up the confusion regarding land-use planning competence of municipalities.
Maccsand argued that the decision to grant a right in terms of the Mineral and Petroleum Resources Development Act 28 of 2002 (MPRDA) trumped consideration in terms of other laws, such as NEMA and the Land Use Planning Ordinance 15 of 1985 (LUPO). It argued that mining is an exclusive national competence in terms of the Constitution of the Republic of South Africa and that other spheres of government cannot interfere in this competence. The counter argument was that LUPO and NEMA serve different purposes and requiring multiple authorisations for the same activity would not be unusual according to South Africa’s law.
The initial judgement of the High Court stated that the Constitution does not give national legislation the right to take away the planning function of municipalities and, therefore, LUPO had clear application in the dispute and has essentially been upheld in both the Supreme Court of Appeal (SCA) and the Constitutional Court.
In view of the above, no further prospecting and/or mining within the Magaliesburg Environs are supported by DIEM.
A note is included here to state that the Blaauwbank river also flows into the Class B Magalies river.
4.16 Rehabilitation Costs The calculation for rehabilitation does not include water monitoring (Chemical, physical, and biological analyses.) This monitoring should be determined and detailed as part of any license agreement and cost for rehabilitation if AMD and sub-surface and surface water contamination occurred. Where will funding be sourced from if this is not included in the rehabilitation plan? The details and or lack of information with regards to impacts of trenching with bulk sample refers.
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MCF Ref: C001 TAU Industries – Draft EAP and EMP reports // Magaliesburg Community Forum
There are also no costs allocated for (or included) for HDPE impermeable liners. Furthermore, the rehabilitation cost should be agreed upon and then set aside before the prospecting can commence. It is also required to include the MCF on the steering committee of the rehabilitation fund. The fund must be transparent to the MCF as well as all I&AP and DMR
4.17 Land Use – Discussions and Legal Arguments Kindly note the letter from MCLM, Reference: M.Mathaku Control Sheet No.: 37987-17/6/9
Feedback with regards to the enquiry in connection with the status, viewed from a nature conservation perspective, of the area west of Magaliesburg. Note that the ecologist and specialist studies should identify the red data species (which were listed but not highlighted by the specialists employed). Note that the specialist studies were conducted during a winter assessment as discussed under other sections of this document.
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MCF Ref: C001 TAU Industries – Draft EAP and EMP reports // Magaliesburg Community Forum
Figure 12 MCLM EMF details for the application area Part 1 of 2
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MCF Ref: C001 TAU Industries – Draft EAP and EMP reports // Magaliesburg Community Forum
Figure 13 MCLM EMF details for the application area Part 2 of 2
Legal Discussions:
Of relevance too is the obligation to rezone land. The necessity to rezone land for mining or prospecting purposes has been confirmed by a series of recent judgements. If this obligation is ignored by holders of mining rights, mining permits or prospecting rights, it could have severe consequences for the holder.
We refer to the Maccsand Case in which the City of Cape Town informed Maccsand that it would not be permitted to exercise the mining right or mining permit unless the land was rezoned for mining purposes in terms of the Land Use Planning Ordinance 15 of 1985 (Cape) (LUPO). LUPO also applies to parts of the North-West Province.
If land is intended to be used or is used for a purpose not permitted in terms of the zoning scheme or regulations, application must be made to the municipality for rezoning or for a use departure.
The view that rezoning of land is required where the land in question is not zoned for mining purposes was further confirmed by the ConCourt in the Minister for Mineral Resources v
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MCF Ref: C001 TAU Industries – Draft EAP and EMP reports // Magaliesburg Community Forum
Swartland Municipality and Others 2012) (Swartland Case). The ConCourt stated that a party who is granted a mining right or permit in terms of the MPRDA may start mining operations only if the zoning of the land in terms of LUPO (or another Ordinance) allows mining.
Both the Maccsand and Swartland cases dealt only with mining rights. However, in a recent decision, the Western Cape High Court, on an application by the Berg River Municipality, granted an interdict against Bongani Minerals, preventing Bongani Minerals from prospecting for tungsten and molybdenum until the land has been rezoned for prospecting purposes. It must be noted that the prospecting activities of Bongani were not particularly intrusive (drilling) and had little impact on the land.
The judgment has not yet been reported but it would now appear that rezoning will be required for both mining and prospecting purposes.
In terms of the Maccsand and Swartland cases the landowner is the principal person able to apply for the rezoning of any property. The right to rezone is not extended to the holder of a right or permit.
The MCF also draws attention to the MCLM SPLUMA By-law 2016 document. Specifically the MCF brings under the reader’s attention section 75 and 76 (especially 75 (1) – (5) and 76 (1)d and 2(a).
http://www.mogalecity.gov.za/images/pdfs/MCLM_DRAFT_SPLUMA_BYLAW_2016.pdf
Furthermore, the reader is also directed at SPLUMA Section 28 and Section 58.
The MCF further brings the following ConCourt Ruling under the attention of the DMR:
http://www.702.co.za/articles/324468/concourt-ruling-on-mining-in-lesetlheng-is-important-for- xolobeni-richard-spoor
ConCourt ruling on mining in Lesetlheng is important for Xolobeni -Richard Spoor
25 October 2018 5:52 PM
The Constitutional Court has handed down a ruling, saying communities have the right to say no to mining and that mining companies cannot remove land owners or occupiers from their land, even if they have been awarded mining rights to mine.
The court overturned an eviction order awarded to Itereleng Bakgatla Mineral Resources (IBMR) and Pilanesberg Platinum Mines (PPM) to evict the Lesetlheng Community from the farm, Wilgeheuwel.
A debate has been raging for nearly 15 years, since Australian mining company, Mineral Commodities started mining titanium from the dunes of Xolobeni on the Wild Coast. Residents of the area were worried about losing their homes and grazing lands, and the environment being damaged.
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Attorney, Richard Spoor has been at the forefront of efforts to protect the land and the people from the harmful effects of mining.
Spoor spoke to Joanne Joseph on the Afternoon Drive to share his take on the judgement and how it will affect the people of Xolobeni.
“This is a good judgement, there are aspects that still need to be clarified but it is an enormous advance.”
— Richard Spoor, Chief Executive Officer at Richard Spoor Inc.
“This judgement which relates to a community in the North West province but which has direct application to the Xolobeni situation and where the Xolobeni community was heard as friend of the court, is really important for them as well.”
— Richard Spoor, Chief Executive Officer at Richard Spoor Inc.
Voice Clip interview with Radio 702 on ConCourt Judgement:
https://omny.fm/shows/afternoon-drive-702/con-court-rules-in-favor-of-people-of-the- eastern
CER – MACCSAND COUNCIL’s LEGAL OPINION
Decisions in the matters of Maccsand (Pty) Ltd v City Of Cape Town and others and the Minister for Mineral Resources v Swartland Municipality and Others were recently handed down in the Constitutional Court.
I was asked to comment on whether or not these decisions are important. In summary, they are indeed extremely important and much more important than might appear at first blush. On a superficial level they address the issue of which law receives precedence, mining or planning law. Of more importance is the fact that they explicitly give effect to a revolution where land use planning legislation has become the basis of all forms of land use.
In one case the Applicant was Maccsand (Pty) Ltd. The Respondents were the City of Cape Town; the Minister for Water Affairs and Environment; the MEC for Local Government, Environmental Affairs and Development Planning, Western Cape Province; the Minister for Rural Development and Land Reform; the Minister for Mineral Resources and, as friends of the court, the Chamber of Mines of South Africa and Agri South Africa. The matter is at this stage reported as Case CCT 103/11, Reference [2012] ZACC 7.
In the other case the Applicant was the Minister for Mineral Resources. The Respondents were the Swartland Municipality, Hugo Wiehahn Louw N.O., Cornelia Johanna Elizabeth Louw N.O., Ignatius Viljoen N.O., Izak Bartholomeas van der Vyfer N.O., Elsana Quarry (Pty) Ltd, and the MEC for Local Government, Environmental Affairs and Development
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Planning in the Western Cape. The matter is at this stage reported as Case CCT 102/11, Reference [2012] ZACC 8.
The spread of parties set out above are noticeable. The Department of Mineral Resources represents the public mining sector from the perspective of formal national government. Other national government department represented other national interests such as the environment, rural development and land reform. The City of Cape Town and the Swartland Municipality represents local, municipal government. The Louws, Viljoen and van de Vyfer are the trustees of the Hugo Louw Trust, the owner of the relevant farm in the Swartland Municipaility known as Lange Kloof. They represent the affected landowners. The companies that intend mining are Maccsand and Elsana Quarry. They and the Chamber of Mines represents the private mining sector or mine owners in general. The mining right relates to the mining of sand by Macsand and granite by Elsana on the farm. As the First Respondent, Mr. Hugo Louw, is also one of the directors of Elsana, it appears that the mining sector had the support of these landowners and not their opposition as is so frequently the case. In contrast, Agri SA representing land owners that may be affected by mining probably opposed mining. The MEC represents all the departments at provincial level that might be interested in mining including local government, planning and the environment.
Every possible government department or private sector entity that may have a say in whether mining should by law take place or not were made parties to these cases. All possible perspectives are therefore covered.
The cases originated in the Western Cape. The factual background of the one case is that Maccsand got a mining permit to quarry sand in the Rocklands dunes on Mitchells plain. The site is located in a residential area between two schools and close to private homes. The City of Cape Town is the owner of the land. In terms of LUPO the dunes were zoned as public open space. Maccsand also got the mining right to quarry sand on the Westridge dune also on Mitchells plain. This dune is also situated in a residential area. There are private homes abutting this dune on three sides and vacant land abuts it on the fourth side. The Westridge dune area consists of three erven owned by the City. Two erven were zoned as public open spaces whereas one was zoned rural. This also meant that unless the land was appropriately rezoned, it could not be used for mining. (There was also an application in terms of NEMA but it became irrelevant as the regulation in terms of which the application was launched was repealed before the hearing.).
Zoning in the Western Cape province must be done in terms of the Land Use Planning Ordinance, No. 15 of 1985 (Cape) (LUPO) and the Scheme Regulations that prescribes how local authorities deal with zoning issues.
Maccsand commended quarrying and an application was launched by Cape Town City to interdict it from continuing to quarry.
The factual background of the other case is that Swartland sought an interdict preventing Elsana to mine on a farm that has not been rezoned from Agricultural I (that does not allow mining) to Industrial III, (which does permit mining). Elsana held a mining right granted in terms of the Mineral and Petroleum Resources Development Act, 28 of 2002. Swartland contended that until the property is zoned Industrial III by Swartland in terms
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of provincial legislation delegated to it, Elsana should not be allowed to mine. The pro- mining camp submitted that a decision in terms of mining legislation that has land use effects provides final land use rights and rezoning in terms of planning legislation such as LUPO is unnecessary.
This argument in these two cases is based on almost 100 years of mining law history. The original approach to mining was that a farm or area of land was declared a mining area. From that day on, all planning related decisions were made by the senior official for the government department responsible for mining on that land. For a very long time, the only question that had to be resolved when a decision had to be made as to whether or not a farm should be declared mining land was whether or not there were minerals on the farm. If there was, the farm was declared mining land. There were specific areas that may not have been mined such as under cemeteries and most roads, in a national park, etc. As planning legislation was introduced and extended, this status quo was retained. Planning legislation simply did not apply in mining areas. In fact, many of the residential townships in Johnnesburg, especially townships near old mines, were established on the strength of mining legislation and not of planning legislation and were declared by a mining official.
In recent years this position changed radically. There were many indications that the position had changed but the Maccsand and Swartland judgments made it impossible for the mining community to ignore these changes.
The relevant finding in both the original Maccsand and Swartland judgments was that rezoning in terms of LUPO settles the land use issue. If in conflict with the zoning, it is essential and further mining should be prohibited until the land had been rezoned. The matters were then taken on appeal and eventually landed in the CC.
In the judgment in the Maccsand case the court said “The first issue is whether a holder of a mining right or permit granted in terms of the MPRDA may exercise those rights only if the zoning scheme made in terms of LUPO permits mining on the land in respect of which the mining right or permit was issued.” In answer to this question the court found “There is nothing in the MPRDA suggesting that LUPO will cease to apply to land upon the granting of a mining right or permit. By contrast section 23(6) of the MPRDA proclaims that a mining right granted in terms of that Act is subject to it and other relevant laws”. Several arguments were then submitted by the mining groups that the MPRDA must prevail but the court found them to be unsubstantiated and found that “It follows that the appeal must fail for all these reasons” This finding has the effect that the planning legislation and not the mining legislation finally determines the land use.
In a short and succinct judgment in the Swartland case it was held that “While the MPRDA governs mining, LUPO regulates the use of land. … If it is accepted, as it should be, that LUPO regulates municipal land planning and that, as a matter of fact, it applies to the land which is the subject matter of these proceedings, then it cannot be assumed that the mere granting of a mining right cancels out LUPO’s application.” This finding also has the effect that the planning legislation and not the mining legislation finally determine the land use. This ruling does not only apply to planning in terms of LUPO but all land use planning in terms of other legislation.
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There were many indications that the law had changed. The mining community failed to tumble to this fact despite clear indications to the contrary. For example, in section 3(1)(j) of the Development Facilitation Act, 67 of 1995 it is said: “Each proposed land development area should be judged on its own merits and no particular use of land, such as residential, commercial, conservational, industrial, community facility, mining, agricultural or public use, should in advance or in general be regarded as being less important or desirable than any other use of land.” What is more, is that in section 2 of the Act, under the title, “Application of principles for land development” it is said “The general principles set out in section 3 apply throughout the Republic and- (a) shall also apply to the actions of the State and a local government body; (b) serve to guide the administration of any physical plan, transport plan, guide plan, structure plan, zoning scheme or any like plan or scheme administered by any competent authority in terms of any law; (c) serve as guidelines by reference to which any competent authority shall exercise any discretion or take any decision in terms of this Act or any other law dealing with land development, including any such law dealing with the subdivision, use and planning of or in respect of land; …” (d) Despite all the legislation to the contrary, the mining community still believed until the CC (Constitutional Court) decided the Macsands and Swartland cases, that mining legislation receives precedence before any other legislation such as planning legislation.
I have said before that the mining community is so full of archaic ideas and people that if you were to make a random selection of mining officials in and out of government, wake them up in the middle of the night and demand to know who the president of South Africa is; a significant percentage would answer “Paul Kruger”.
Their attitude as set out above, explains why they think mining legislation as being superior not only to planning but also to other legislation, such as environmental laws and why they regard it as their right to ignore such legislation.
The first conclusion must therefore be that the planning instruments for any area such as die LEDPs (local economic development plans), SDFs (spatial development frameworks) etc must be consulted and if the zoning does not include mining, it must be opposed on that rather mechanistic basis.
The second conclusion goes much further.
It has increasingly been accepted that the most important component or requirement for economic growth, poverty eradication, job creation, environmental protection etc etc etc must be adequate and wise land use planning and that the duty to plan land use wisely must be made legally enforceable and that complying with land use instruments must be compulsory as well.
The Development Facilitation Act, 67 of 1995 (DFA) was quoted above. The Constitution and the municipal legislation all add to the legislation that enforces planning.
One of the important cases dealing with this issue was another CC matter namely the case of the Johannesburg Metropolitan Municipality v Gauteng Development Tribunal and Others 2010 (6) SA 182 (CC). In this matter the Municipality (of Johannesburg)
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objected to the Tribunal created in terms of the DFA, a provincial body, issuing planning decisions in conflict with the Municipalities’ legally binding planning framework. Their argument was that they and only they had the right to decide on municipal planning. Here one must bear in mind that the area of the entire country falls under the control of a municipal. The DFA tribunal disagreed and said that they had the right to make planning decisions as well or instead of the Municipality. The CC found that the Municipality had the exclusive right to do municipal planning and that the DFA to that extent was unconstitutional and had to be set aside and appropriate orders were issued in this regard.
What however is important to us is what the CC said in support of its decision.
At page 200D it is stated “[45] The starting point in assessing the powers of the local-government sphere is s 156(1) (of the Constitution) which affords municipalities original constitutional powers. It reads: '(1) A municipality has executive authority in respect of, and has the right to administer - (a) the local government matters listed in Part B of Schedule 4 and Part B of Schedule 5; … Part B of Schedule 4 includes the following functional areas: … Municipal planning”
At page 203B – E it is stated “[57] Returning to the meaning of 'municipal planning', the term is not defined in the Constitution. But 'planning' in the context of municipal affairs is a term which has assumed a particular, well-established meaning which includes the zoning of land and the establishment of townships. In that context, the term is commonly used to define the C control and regulation of the use of land. There is nothing in the Constitution indicating that the word carries a meaning other than its common meaning which includes the control and regulation of the use of land. It must be assumed, in my view, that when the Constitution drafters chose to use 'planning' in the municipal context, they were D aware of its common meaning. Therefore, I agree with the Supreme Court of Appeal that in relation to municipal matters the Constitution employs 'planning' in its commonly understood sense. As a result I find that the contested powers form part of 'municipal planning'.
At page 212A-E it is stated: “[89] The City submitted further that the Supreme Court of Appeal should have upheld the appeal in respect of the claim for review on the ground that the Tribunal committed a material error of law by holding that it was not bound by the City's integrated-development plan and its constituent components, the spatial-development framework and the urban-development boundary. [90] The High Court correctly held that the Tribunal was bound to consider the City's integrated-development plan and its relevant components. C This flows from s 35(1)(a) of the Local Government: Municipal Systems Act 58 which provides that an integrated-development plan 'guides and informs all planning and development, and all decisions with regard to planning, management and development, in the municipality'. The unqualified terms of this provision entail that the integrated- development plan must be considered by any government body carrying out planning or development in a municipality, including the Tribunal. The Tribunal's belief that it was not bound to consider this document was therefore an error of law.”
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The implications of this decision are that land use planning must be done by the Municipality and all subsequent development must take place within these constraints. Therefore, if the zoning in the SDF prohibits mining in an area, no mining may take place in this area and no decision, whether in terms of the DFA or the MPRDA or any other legislation may change that zoning.
When preparing the SDFs etc, there are specific instructions that the Municipality must comply with. They include the following:
CHAPTER 5 INTEGRATED DEVELOPMENT PLANNING Part 1: General Municipal planning to be developmentally oriented 23. (1) A municipality must undertake developmentally-oriented planning so as to ensure that it— (a) strives to achieve the objects of local government set out in section 152 of the Constitution; (b) gives effect to its developmental duties as required by section 153 of the Constitution; and (c) together with other organs of state contribute to the progressive realization of the fundamental rights contained in sections 4, 25, 26, 27 and 29 of the Constitution.
Municipal planning in co-operative government 24. (1) The planning undertaken by a municipality must be aligned with, and complement, the development plans and strategies of other affected municipalities and other organs of state so as to give effect to the principles of co-operative government contained in section 41 of the Constitution.
Adoption of integrated development plans 25. (1) Each municipal council must, within a prescribed period after the start of its elected term, adopt a single, inclusive and strategic plan for the development of the municipality which—- (a) links, integrates and co-ordinates plans and takes into account proposals for the development of the municipality: (b) aligns the resources and capacity of the municipality with the implementation of the plan: (c) forms the policy framework and general basis on which annual be based; (d) complies with the provisions of this Chapter; and (e) is compatible with national and provincial development plans and planning requirements binding on the municipality in terms ot’ legislation. (2)An integrated development plan adopted by a municipal council in terms of subsection ( 1 ) may be amended in terms of section 34
Part 2: Contents of integrated development plans Core components of integrated development plans 26. An integrated development plan must reflect— (a) the municipal council’s vision for the long term development of the municipality with special emphasis on the municipality’s most critical development and internal transformation needs:
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(b) an assessment of the existing level of development in the municipality, which must include an identification of communities which do not have access to basic municipal services; (c) the council’s development priorities and objectives for its elected term, including its local economic development aims and its internal transformation needs; (d) the council’s development strategies which must be aligned with any national or provincial sectoral plans and planning requirements binding on the municipality in terms of legislation; (e) a spatial development framework which must include the provision of basic guidelines for a land use management system for the municipality; (f) the council’s operational strategies; (g) applicable disaster management plans; ,. (h) a financial plan, which must include a budget projection for at least the next three years; and (i) the key performance indicators and performance targets determined in terms of section 41.
Please note that mining is nowhere mentioned as being an activity that must be included. It will of course be included where it can add to the developmental principles set out in the Act and elsewhere. However, note that there is no priority for mining anywhere. In fact, section 3(1)(j) quoted above can be better understood against the background given here. It does not matter how attractive an area for mining is, if it does not fit into the planning framework, it may not be allowed.
Obviously, where mining will unreasonably impact adversely on ecotourism in an area the planning instruments should reflect this fact and should prohibit such mining.
An example is the following: A mine, Boikarabelo intends mining near Steenbokpan. It will destroy vast tracts of ecotourism land. There are however vast tracts of coal in that area. As such, the SDF may allocate the mining of coal to an area where it will not cause such damage. For example, mining may be allowed near Stockpoort and can in a planned way fan out to the west and southwest. Plonking a mine in the middle of an area used for game and nature activities when coal can be extracted harmlessly elsewhere should however be refused.
The second conclusion therefore is that far more attention should be given to planning instruments. If they do not allow mining, rely strongly on them and make friends with the municipal officials to ensure that they do not change the SDFs. If it allows mining and mining should on good planning grounds be refused, apply for the amendment of the planning instruments.
THE TRANSVAAL ORDINANCE
1. The Transvaal Ordinance provides, in section 18, for the preparation of a town- planning scheme by a local authority. 2. In terms of section 19, the general purpose of such a town-planning scheme is "the co-ordinated and harmonious development of the area to which it relates in such a way as will most effectively tend to promote the health, safety, good order,
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amenity, convenience and general welfare of such area as well as efficiency and economy in the process of such development 3. A town-planning scheme may inter alia provide that the local authority may in its discretion consent to the use of any land or building for a particular purpose, and that it may grant exemption from the provisions of the scheme or relax the requirements of those provisions. It may also contain "such other provisions as may be prescribed or which relate to town-planning in genera!' (section 20) 4. Section 21 provides that "a local authority shall not prepare a town-planning scheme in respect of land... which is proclaimed land ... on which prospecting, digging or mining operations are being carried ouf' , and that when " any land to which a town-planning scheme in operation relates becomes proclaimed land, the scheme shall no longer apply thereto". 5. Proclaimed land is defined (in section 21(4)) by reference to the definition thereof in the Mining Rights Act 20 of 1967. Section 1 of that Act defined "proclaimed land' as "land which has in terms of section 39 been proclaimed a public digging for precious metals or base minerals and is still so proclaimed, or which is proclaimed land by virtue of the provisions of section 40". Sections 39 and 40 in turn deal with the proclamation of land inter alia for public digging, state mines and mineral leases over private and state land. 6. The Mining Rights Act was repealed by the Minerals Act 50 of 1991. Section 45 of the Minerals Act deproclaimed all proclaimed land, with certain transitional provisions operative over the following two years. This was because the new system of authorizations introduced by the 1991 Act did away with the need for the old system of proclamation.3 The system of proclamation had dramatic effects on the land owner's surface use rights, but as a consequence of the 1991 Act, the surface owner was no longer prevented from using the surface for other purposes. 7. Section 56 of the Transvaal Ordinance provides for the owner of land to make application for the amendment of a town-planning scheme relating to his land. The prescribed process includes extensive provision for the publishing of notices, and the submission and consideration of objections. 8. Section 42 provides that when any person uses any land or building or causes it to be used in conflict with a provision of a town-planning scheme, the municipality concerned may direct such person in writing to discontinue such use or cause it to be discontinued, and at his own expense to cause such use to comply with the provisions of the scheme. The directive shall state the period within which it shall be carried out. Any person who contravenes or fails to comply with such a directive shall be guilty of an offence. Where any person fails to comply with such a directive the municipality may, whether or not a prosecution has been or will be instituted, cause the work to comply with the provisions of its town-planning scheme and recover all expenses incurred in connection therewith from such person. 9. The permissibility of mining activities on any particular land in an area governed by the Transvaal Ordinance will depend on the particular town planning scheme applicable to the area. 10. For example, the Johannesburg Consolidated Town Planning Scheme 2011 provides for "mining purposes" as a land use. The only zoning which permits mining activities as of right, is the "Undetermined zone". It lists mining purposes as the primary land use right.
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11. Significantly, the Scheme provides that where land was excluded from previous town planning schemes, it will be zoned as "undetermined". The primary land use right will then be mining. This would presumably include previously proclaimed land, which was excluded from previous town-planning schemes by virtue of the Mining Rights Act. 12. Clause 18 of the Scheme provides that the removal of soil, sand or gravel for sale without consent of Council is prohibited. Clause 14 provides that excavation of any material from any erven without consent of Council is prohibited. 13. The Scheme provides for application to be made for consent use. This is defined in Section 1, Part II Definitions as the use of land in addition to the primary use rights listed in the tables for each zone. 14. Sections 39 to 41 regulate the process of application for consent use. This process includes extensive notice and comment requirements. 15. It is clear that mining activities may only be conducted on land which is zoned for the purpose in terms of a town planning scheme for the area concerned, formulated in terms of the Transvaal Ordinance. Where mining activities are conducted on land not appropriately zoned, this constitutes a criminal offence in terms of section 42. 16. In order to obtain the right to undertake mining activities on land not zoned for that purpose, application may be made for consent to do so, if the relevant town planning scheme makes provision for this (section 20) - as illustrated by the example of the Johannesburg town planning scheme. Application may also be made for an amendment to the town planning scheme (section 56). Both of these processes make provision for extensive notice and comment procedures, which may be used by local communities and NGOs to object to proposed mining activities.
PROSPECTING AND EXPLORATION
17. The Maccsand judgment deals with mining activities pursuant to a mining right or permit. However, in our view there is no reason why it should not also apply to prospecting and exploration activities. 18. Prospecting rights are granted by the Minister in terms of section 17(1) of the MPRDA. Like mining rights and mining permits, they are granted subject to any other relevant law: section 17(6). 19. Similarly, section 19(2)(d) of the MPRDA provides that the holder of a prospecting right must comply with any other relevant law. 20. These provisions are usually echoed in the prospecting right itself, which will usually provide that the granting of the right does not exempt the holder from complying with any other relevant law in force in the Republic of South Africa. 21. In paragraph 45 of the Maccsand judgment, the Constitutional Court held that LUPO is a "relevant law" within the meaning of the MPRDA, and that rights granted under the MPRDA must be exercised subject to LUPO (and thus other land use planning legislation by means of which local authorities regulate land use). 22. In our opinion, prospecting and exploration constitute a land use which a local authority may regulate. Whether they are so regulated will depend on the definition of land use in each particular legislative instrument. If they are so regulated, they are subject to the land use planning regime.
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23. Section 2 of LUPO and section 1 of the Northern Cape Act define the utilisation of land as "the use of land for a purpose or the improvement of land ...". There can be no doubt that prospecting and exploration constitute "the use of/ and for a purpose". 24. Our courts have recognised the distinction made, in section 2 of LUPO, between the "use" and the "improvement" of land. In Hangklip Environmental Action Group,7 the Court distinguished between "agricultural use" and "agricultural improvement", and between use and improvement of the land for agricultural purposes. A similar distinction is made in Waenhuiskrans Amiston Ratepayers Association. 25. Section 1 of the KZN Act defines " 'development' in relation to any land' as "the erection of buildings and structures, the carrying out of construction, engineering, mining or other operations on, under or over land, and a material change to the existing use of any building or land for non-agricultural purposes". Again, it is clear that prospecting and exploration activities are, at least, "other operations on, under or over land' . They are therefore regulated by the Act, and by schemes under it. 26. Prospecting and exploration activities may in some cases be less invasive than mining activities. However, this does not justify the conclusion that prospecting and exploration activities do not in principle constitute land use. 27. The fact that prospecting and exploration constitute a land use is apparent from the MPRDA itself: a. Prospecting is defined as follows in section 1 of the MPRDA: "'prospecting' means intentionally searching for any mineral by means of any method-
1. which disturbs the surface or subsurface of the earth, including any portion of the earth that is under the sea or under other water; or 2. in or on any residue stockpile or residue deposit, in order to establish the existence of any mineral and to determine the extent and economic value thereof; or 3. in the sea or other water on land;" b. An "exploration operation" is defined as follows: '"exploration operation' means the re-processing of existing seismic data, acquisition and processing of new seismic data or any other related activity to define a trap to be tested by drilling, logging and testing, including extended well testing, of a well with the intention of locating a discovery;"
c. Section 5 sets out the legal nature of a prospecting right, mining right, exploration right or production right, and the rights of holders. It provides as follows in relevant part:
"(3) Subject to this Act, any holder of a prospecting right, a mining right, exploration right or production right may-
1. enter the land to which such right relates together with his or her employees, and may bring onto that land any plant, machinery or equipment and build, construct or Jay down any surface, underground or under sea infrastructure
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which may be required for the purposes of prospecting, mining, exploration or production, as the case may be; 2. subject to the National Water Act, 1998 (Act 36 of 1998), use water from any natural spring, lake, river or stream, situated on, or flowing through, such land or from any excavation previously made and used for prospecting, mining, exploration or production purposes, or sink a well or borehole required for use relating to prospecting, mining, exploration or production on such land; and 3. carry out any other activity incidental to prospecting, mining, exploration or production operations, which activity does not contravene the provisions of this Act. 28. These activities quite clearly constitute a land use, and are therefore subject to municipal planning legislation. 29. This conclusion is strengthened by the Mineral and Petroleum Resources Development Regulations promulgated under the MPRDA and published in GN R527 in GG 26275 of 23 April 2004:sdfg a. Regulation 7(1)(g)(i) provides that prospecting activities may include "excavations, trenching, pitting and drilling".
b. Regulation 30 indicates that exploration includes "geological, geochemical, geophysical, exploration drilling and other work". 30. Such activities constitute land use. They are therefore regulated by municipal planning legislation. 31. The Constitutional Court pointed out, in Bengwenyama Minerals, 11 that "the granting and execution of a prospecting right represents a grave and considerable invasion of the use and enjoyment of the land on which the prospecting is to happen." 32. It appears that the planning legislation and schemes to which we have referred do not, in general, refer specifically to prospecting and exploration activities (as opposed to mining activities, at least in some cases). However, that does not mean that those activities are not regulated land uses. The question whether a particular activity is a land use is a question of fact. In our opinion, the activities to which we have referred are indeed a land use. 33. It is so that exploration or prospecting are limited in time. That, however, does not disqualify them from being a form of land use. Mining, too, is usually carried out for a limited period under the relevant mining grant. Where the legislative framework permits this, the activity may be authorised by a temporary departure from the authorised use. Thus, section 15 of LUPO authorises the owner of land to apply for a departure from the regulations: 15 Applications for departure
(1)(a) An owner of land may apply in writing to the town clerk or secretary concerned, as the case may be-
(ii) to utilise land on a temporary basis for a purpose for which no provision has been made in the said regulations in respect of a particular zone.
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34. All of the municipal planning legislative instruments to which we have referred above, make provision for applications for departures, consent uses, exemptions and relaxations of the applicable schemes, as well as for land use changes, rezoning, or amendment of town planning schemes. In our opinion, prospecting and exploration activities may not take place without such an application and approval, where such activities are not authorised by the applicable town planning scheme, zoning scheme or scheme regulations as a land use right.
CURRENT UNLAWFUL LAND USE
1. If such activities are taking place on land which is not appropriately zoned, they constitute an offence in terms of the municipal planning legislative instruments outlined above. 2. Local authorities are thus entitled to follow the steps set out in the applicable legislation (e.g. investigating, issuing a directive, initiating a prosecution, etc.). They are also entitled to apply to court for an order interdicting the continued infringement unless and until zoning approval has been obtained. 3. A municipality has a clear right to enforce the provisions of such legislation in the interests of the local community and in the public interest generally. 4. Indeed, LUPO (section 39(1)) and the Northern Cape Act (section 66(1)), oblige a municipality to enforce compliance with its zoning scheme. 5. In Minister of Health v Drums and Pails Reconditioning CC tla Village Drums and Pails,19 the court held that a Minister "who is charged with the responsibility of ensuring that the provisions of the Act are being complied with and having regard to the interests of the population she serves and the protection of the environment, has a clear right to prevent, in particular, contraventions of the Act. 6. In Johannesburg City v Mansirs and another, the court held that the clear right of a local authority "flows from its position as representative and guardian of its citizens. It is furthermore obliged by statute to enforce its town planning scheme by using whatever remedy may be necessary, including an application for an interdict to prevent or bring about the cessation of an infringement about to occur as is the situation in the present case". 7. In United Technical Equipment Co (Pty) Ltd v Johannesburg City Council, the court held as follows: "The respondent [the local authority] has not only a statutory duty but also a moral duty to uphold the law and to see to due compliance with its town planning scheme. It would in general be wrong to whittle away the obligation of the respondent as a public authority to uphold the law."
8. The United Technical Equipment case dealt with whether the court has a discretion to suspend the operation of an interdict once unlawful conduct has been established and an interdict granted. However, the principle enunciated there applies equally to the court's discretion to grant an interdict. 9. The dictum from the United Technical Equipment case has been referred to with approval in a number of cases. It clearly indicates the right and obligation of a local authority to enforce the provisions of its town planning scheme. In cases such Bitou Local Municipality
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v Timber Two Processors CC and another, Nelson Mandela Metropolitan Municipality and others v Greyvenouw CC and others and Huisamen and others v Port Elizabeth Municipality, the court emphasised right and responsibility of a local authority to enforce the provisions of its statutory instruments, and the duty of the courts to refuse to condone or sanction unlawful conduct. The court in Bitou Local Municipality emphasised the public interest and public policy considerations of "sound and effective focal government' 10. A local authority can show that the unlawful mining activities undermine its ability to comply with its statutory obligations in terms of its land use planning legislation, and further undermine its ability to regulate the matters within in its jurisdiction in the public interest, and to carry out its constitutional and statutory duties. Unlawful mining constitutes an injury to the right of the municipality to enforce the provisions of such legislation in the public interest. 11. In Drums and Paits2 the Court made it clear that it considers unlawful conduct, in contravention of a legislative provision, as an injury of the right of the body charged with enforcing that provision, for the purposes of final interdictory relief. 12. Indeed, even if only a few pieces of land in a particular area are used contrary to the zoning for that area, "the character of the area and the welfare of the members of the community in that area would be jeopardised and the planning objectives of the local authority... frustrated 13. A local authority can also show that it has no effective alternative remedy to an interdict. A criminal prosecution is certainly not an effective remedy, for it is aimed at punishment of the offender rather than at terminating the unlawful conduct. Also, the municipality has no control in a criminal prosecution, and cannot even ensure that as a result of the laying of a charge, a prosecution takes place. 14. Our courts have consistently held that the availability of a statutory remedy does not exclude the remedy of an interdict. 15. In Johannesburg City Council v Knoetze and Sons,28 the court held as follows: "...while the statutory remedies might be adequate to deal with past breaches, the civil remedy of interdict might be the only effective means of coping with future or continuing breaches. Hence, it is not to be initially inferred that the lawgiver intended to exclude such a remedy. Indeed, the presumption is the other way ... the civil remedy of interdict is presumed to be available unless the statute excludes it expressly or by necessary implication."
16. That dictum has been cited with approval in a number of cases, including Johannesburg City Council v Bernard Lewis Construction (Pty) Ltd and another, Minister of Health and Welfare v Woodcarb (Pty) Ltd and another,and Estate Agents Board v Fred P Ackerman's Properties (Pty) Ltd and others where the court held that " ...it is clear, in my view, that the remedies specially provided by the Act might in certain circumstances be insufficient to carry out the objects of the Act and to secure compliance with its provisions ...". 17. A claim for damages would also not be an adequate alternative remedy. It would be impossible to quantify the damages caused by the unlawful conduct in order to bring a claim for damages. Damages would in any event not address the injury (which would be a continuing injury) caused to the municipality and its public by the breach of the land use legislation.
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Proposed unlawful land use where rights have been granted under the MPRDA
18. If a person holding a prospecting, exploration or mining grant is about to commence that activity on land which has not been zoned for that use, a local authority can apply to court for an order interdicting the commencement of the activities unless and until zoning approval has been obtained. The same considerations as set out above would apply.
Opposition to new applications
19. When an application is made under the MPRDA for a prospecting, exploration or mining right or permit on land not zoned for that use, the zoning of the land is not a valid ground of objection to the application. The Supreme Court of Appeal held in its judgment in the Maccsand case that the Minerals Minister is not required to take into account municipal planning considerations (like the zoning of the land) when granting rights and permits under the MPRDA - indeed, she probably may not take such factors into account. 20. However, local communities and NGOs may oppose the granting by the local authority of land use permission for mining activities (e.g. departures, consent use, exemptions, rezonings etc.). All of the relevant statutory instruments provide opportunity for objections by interested parties. If these objections do not succeed, advice may be obtained on whether there are valid grounds for the judicial review of the decision by the local authority. Rights and remedies of NGOs
21. Where prospecting, exploration or mining is or is about to be carried out contrary to a town planning or zoning scheme, members of the local community or NGOs may also have the right to approach a court for interdictory relief if the local authority concerned does not take action. 22. It is now well settled that, because "town planning and zoning restrictions are enacted in the interests of a class of persons, namely the residents of the area", such residents "have standing to interdict violations without proof of actual harm" 23. In Esterhuyse v Jan Jooste Family Trust and Another, 34 the court held as follows: " The applicant is clearly a member of the community which is affected by the zoning scheme. Although he might not personally have suffered any direct financial loss or damage as a result of the second respondent's conduct in approving the erection of certain buildings or constructions on the first respondent's property, he undoubtedly has the right to attack such conduct on the basis that it is in conflict with the co-ordinated and harmonious development of land which has been zoned for agricultural purposes. He is likewise perfectly entitled to complain that the 'non-agricultural' improvements on the first respondent's land are detrimentally changing the character of the area governed by the scheme."
24. It is important to note that the National Environmental Management Act creates very broad standing: 24.1. Section 32(1) of NEMA states that "any" person or group of persons may seek appropriate relief in respect of any breach or threatened breach of NEMA
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or of any other statutory provision concerned with "the protection of the environment or the use of natural resources", "in the interest of or on behalf of a group or class of persons whose interests are affected'i35 or "in the interest of protecting the environment.
25. The "environment" is defined in sec 1 as: "The surroundings within which humans exist and that are made up of - The land, water and atmosphere of the earth ..." 26. It has been held that LUPO is a statutory provision concerned with the protection of the environment. 37 On this basis, "any person" may seek relief to prevent a breach of LUPO "in the interest of protecting the environment". Similar arguments could no doubt be made with regard to other statutory provisions regulating land use, by reference to their text.
Other land use questions are related to the various properties owned by Mogale City Local Municipality – How was and will the land use and rezoning be conducted. Should this not be an inclusive consultative process with all affected and interested parties? Who at Mogale City Local Municipality will make the decision to approve rezoning and will it involve all council members at council meetings and follow the appropriate process and procedures? All interested and affected parties would like to receive confirmation and information on these decisions by MCLM. Furthermore, there are claims that there is a small rural school development just North of the Koesterfontein portion 11/22 area (Carmel Estate). Clearvu fencing has already been erected for this facility. The impact on this facility has not been evaluated besides being a different land use category – see MCLM details in Appendix 5.2.
4.18 PIOM – Prospecting not within 2km of Residential Area The DMR commented on the applicants’ scoping reports: “Kindly be informed that there are comments received from the Principal Inspector of Mines (PIOM) regarding the submitted SR. The comments from the PIOM indicates that prospecting activities are prohibited within a distance of 2 km from residential areas. You are therefore urged to consider the above- mentioned comments during the EIA/EMP phase should your application be considered favourable.” Please note that there are various residential houses / homesteads / staff quarters on the different farm portions. The current proposed prospecting activities all fall within 2 km of various residential / homesteads / staff quarters / houses / homes of the various landowners. The landowners cannot see how this rule can apply to a suburban area and not to the residential / homestead area of the various landowners as the impact on human life and receiving environment will be similar.
Please note the possible rural school development (at Carmel Estate – see MCLM details in Appendix 5.2.) as well as the scattered informal settlements all fall within the 2 km radius that will be impacted and have not been consulted with.
4.19 Mining and Biodiversity Guidelines It is misleading to state emphatically what will happen around mining activities in the Colum headed “How does this development comply with and respond to the legislation and the policy context”.
The EAP fails to indicate as emphatically that THE SITE IS high risk for mining, not simply “areas “. The actual application site is not suitable for mining and is categorized “high risk” to mining (see
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DIEM statement). As such there is a requirement for a compelling motivation to ignore the best practice scientifically arrived at in these guidelines. To include the MCLM’s EMF which considers mining a non-desirable activity, as well as the MCLM SDF and the threatened class B status of the Magalies River.
Kindly also note content of the Bojanala Platinum District Municipality (BPDM) Environmental Management Framework and the relevance of the EMF to the above-mentioned prospecting application. The EMF is a decision support tool which ensures that the competent authority has sufficient information to guide EIA authorization decision within the specific geographical area and in the matter under consideration – the Magaliesburg Biosphere (buffer and transition zones).
In the BPDM area, there are five conservation areas that are legally protected and where mining is prohibited (Category A). The Magaliesburg Biosphere falls within a biodiversity zone and not a mining zone. (Please see subjoined map and description of Zone E.) It should be noted that the prospecting area falls on the edge and corridor of the biosphere, where any extended pollution viz via the water courses (Blaauwbank river catchment range, into the Class B Magalies river, which eventually ends up in the Crocodile river) will impact on the biosphere.
Figure 14 BPDM EMF Area Map
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Figure 15 BPDM EMF – Zone E: Biodiversity Zone description.
4.20 National List of Threatened Species and Ecosystems Regulation 10 (c) indicates that ALL information which has the potential to influence the decision must be provided. While the regulation does not say information should be provided in an unambiguous manner, we believe this is implied and a reasonable man may expect the application to be clear.
(c) provide the competent authority with all information that reasonably has or may have the potential of influencing any decision with regards to an application
4.21 Full Description of the Process The EAP fails to indicate what will be done if it is “not possible” to relocate the drill and trench sites in order that red data species are protected. As the activity of bulk sampling and the associated impact cannot be identified without more information, the question is asked of that activity too. How will red data species be protected? If these species cannot be protected during prospecting and bulk sampling, then we ask how precisely this applicant is compliant with the policies, guidelines and laws. The area is part of supporting ecosystem and is situated on the corridor of a critical biodiversity area where animals, birds, mammals, amphibians, reptiles can easily access this area due to the close proximity to a threatened ecosystem – considerations which MUST be made in this regard.
As the EAP is motivating the no-go option that mining MUST happen to avoid “squandering socio- economic opportunities”. We therefore argue that the EAP is ANTICIPATING the mining right to follow for the developer and therefore we ALSO anticipate the destruction of the environment, the loss of opportunity for that which is in process already (conservation, eco recreation, and Agriculture), and the tragic loss of supporting ecosystems with critical biodiversity due to presence of red data species (Fauna and Flora) in an over-populated stressed province.
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Sustainability principle
Regulation 10 (c) (vi) states that the development, use and exploitation of renewable resources and the ecosystems of which they are part do not exceed the level beyond which their integrity is jeopardised;
We argue that the listed red data species are highlighted in the list of fauna and flora species present (see Wetland and Biodiversity assessment specialists reports for full fauna and flora lists, but no Red data’s identified or highlighted), additional to the CPlan data confirming the supporting ecosystem and neighbouring critical biodiversity, should STRONGLY negate authorising this activity.
4.22 TAU Industries Background and Experience While it is understood that qualified people may be employed, what experience / technical ability does Tau Industries have in this field and how many previous prospecting activities have been successful conducted by them? As the employer, the potential exists for an unwise, inexperienced or unauthorised instruction to be given to employees. We assume the abilities to require some relevant skill/experience in the field of mining / prospecting. It seems like the applicant’s director (Mr. Gerhard van Staden) does have connections and experience with ownership and outsourcing of yellow equipment with drivers he owns but nothing of Tau Industries related to prospecting, and own experience with regards to mining. We have not noted any ISO (9000, 14000, etc.) certification or registration.
-BBEE requirements in terms of MPRDA in both Tau Industries (Andries Gerhardus van Staden – Sole Director since inception in 2016, Registration number 2016/516083/07) and Gold Founders (The company with a resolution agreement with Tau Industries with directors: Carel Frederik Cornelius and Edmund Walker van Staden founded in 2017 registration number 2017/272567/07) – See Appendix 5.1 . Nowhere does this seem addressed in SR and EIA
All are White and all are Male.
"Broad Based Economic Empowerment" means a social or economic strategy, plan, principle,
approach or act which is aimed at-
(a) redressing the results of past or present discrimination based on race, gender or other disability of historically disadvantaged persons in the minerals and petroleum industry, related industries and in the value chain of such industries; and
(b) transforming such industries so as to assist in, provide for, initiate or facilitate-
(i) the ownership, participation in or the benefiting from existing or future mining, prospecting, exploration or production operations;
(ii) the participation in or control of management of such operations;
(iii) the development of management, scientific, engineering or other skills of historically
disadvantaged persons:
(iv) the involvement of or participation in the procurement chains of operations;
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(v) the ownership of and participation in the beneficiation of the proceeds of the operations or other upstream or downstream value chains in such industries;
(vi) the socio-economic development of communities immediately hosting, affected by
supplying labour to operations; and
Paragraph (b)(vi) in the definition of “broad based economic empowerment” substituted by section 1(b) of
Act 49 of 2008 with effect from 7 June 2013)
(vii) the socio-economic development of all historically disadvantaged South Africans from the
proceeds or activities of such operation.
And s2(c), (d)
Also conflict of present application for prospecting with long term viability of tourism (thereby conflicting with objectives of Act (s2(f) and (h)
4.23 TAU Industries and Gold Founders Financial Capabilities The financial capabilities submitted to the DMR for the SR, only indicates a cash flow in the Gold Founders account of between R331 000 to R4,39m. There are no summaries or financial statements from a registered chartered accountant showing inter alia the companies turnover, liabilities, source of income and or nett profit. No tax number or tax registration and compliancy documents of Tau Industries is divulged anywhere. Only limited and selected bank statements of Gold Founders is shown. This creates a serious unease amongst some of the I&AP, and the MCF. During the previous SR public participation meeting the applicant suggested that he will buy other mining operations like the struggling, and controversial Protea Mine in the area, as well as indicated to some landowners his interest to buy their property, even from people like Mr. Salven Chetty, current owner of Protea Mines. It should be noted, that although the controversial Protea Mine might have some form of mining right, did the MCF note that none of the properties mined (both legal and illegally – including Zama-zama activities), have been rezoned for mining and still shows on the current Mogale city’s valuation role as “Agricultural” or “State Owned”. Furthermore, the MCF battles to find previous EIA and EMP documents for the Protea Mine for review and to ensure compliance. The DMR as well as the DWS have visited the site and found some non- conformances, and issued a pre-directive. The slow environmental dispute process (especially of the DMR), is of serious concern to the MCF, and is worried that this can result in a Lasse-Faire attitude where the companies mining (prospecting or with prospective mining related activities) will have Carte-Blanche and enrich themselves financially at the expense of the extended environment and community.
Nowhere is Tau Industries financial capability and support evident and transparent enough to support the claims and suggestions. The MCF believes that this acquisition claims and comments are tactics to silence any complaints and objections amongst our community (and landowner) members without the actual backing and financial support to execute what is being said or suggested.
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5 ATTACHMENTS
5.1 ATTACHMENT 1: Selected details of Tau Industries and Gold Founders:
TAU Industries:
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Gold Founders:
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5.2 ATTACHMENT 2: Details with regards to the Magaliesburg Precint Plan 2011
http://www.mogalecity.gov.za/content/pdfs/magalies/draft_precinct_plan2011_statements _new.pdf
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5.3 ATTACHMENT 3: Selected Photos of the Koesterfontein area after first 20 mm rain for the season on 14/10/2018:
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5.4 ATTACHMENT 4: Boophane Disticha in bloom:
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5.5 ATTACHMENT 5: Slow response of Dispute Resolution and DMR Governance:
The below serves to show how slow and tedious the complaints / dispute resolution process of the DMR and DWS are with regards to Mining issues and “NON-COMPLIANCES” in and around the Magaliesburg area. This is further raised as a concern to the MCF and greater Magaliesburg community, especially taking the sensitive nature of the Magaliesberg Biosphere and COH WHS and affected environs in the greater vicinity of the proposed activity especially considering the future mining possibilities as prospecting is the pre-curser to mining.
PROTEA MINE: CORRESPONDENCE BETWEEN THE FSE, THE DMR AND THE DWS
From: Mashudu Maduka [mailto:[email protected]] Sent: 30 October 2018 01:07 PM To: Mariette Liefferink
Good day,
An e-mail regarding alleged illegal mining activities at Protea Mine is hereby being acknowledged and an investigation will be conducted soonest.
Kind regards
From: Mariette Liefferink [mailto:[email protected]] Sent: Tuesday, October 30, 2018 10:02 AM To: Jimmy Sekgale; [email protected]; Mashudu Maduka; Sunday Mabaso; [email protected]; 'MagaliesburgMCF'; 'Jaco Du Toit (ZA)' Cc: 'Madumo Esmy (GAU)'; 'Thobejane Sam (GAU)'; 'Khoza Fumani Kevin (ELS)'; 'Govender Bashan (DHQ)'; 'Siwelane Lilian (GAU)'; 'Lucien Limacher'; Sheree Bega Subject: FW: Protea Mine and Alleged Illegal mining at Blaauwbank area Magaliesburg Importance: High
FOR URGENT ATTENTION:
Mr. Sunday Mabaso Mr. Jimmy Sekgale Ms Mashudu Maduka
Dear Mr Mabaso, Jimmy and Mashudu,
I once more write on behalf of the Federation for a Sustainable Environment (FSE).
As you may recall the FSE submitted numerous complaints regarding the alleged unlawful mining activities by Protea Mine. Please see attached and subjoined.
SUBJOINED
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Regrettably, notwithstanding the copious correspondence, discussions and commitments made regarding the matter, business is continuing as usual.
We were notified on the 29th instant that besides previous activities by Protea Mine, additional mining and earthmoving equipment are being employed in the Zuickerboschfontein and Blaaubank area. The subjoined pictures were taken on the 23rd and 24th instant.
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Concerns were furthermore raised by affected parties that the mining activities are on land zoned for agricultural use and state owned.
We hereby once more respectfully call upon you to investigate the complaint and to supply us with a report following your investigation.
SUBJOINED
Best Regards Mariette Liefferink CEO: FEDERATION FOR A SUSTAINABLE ENVIRONMENT TEL. (+27) 11 465 6910 (+27) 73 231 4893 Postnet Suite #113, Private Bag X153, Bryanston, 2021 E-MAIL: [email protected]
From: Nthungeni Nkhetheni (HBP) [mailto:[email protected]] Sent: 09 April 2018 09:20 AM To: [email protected]
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Cc: Ramothole Charlotte(GAU)
Good day Ms Liefferink
Please note that the follow-up investigation on this matter is scheduled for 13 April 2018.
Feedback will be provided to you after the investigation.
Kind Regards,
Nkhetheni Nthungeni
Directorate: Water Regulation and Use Department of Water and Sanitation, NW Provincial Operations Old Rustenberg Road, Hartbeespoort Dam, 0216 Tel. 012 253 1026 Cell: 082 414 8881 Fax: 0865794133 Email: [email protected]
______From: Madumo Esmy (GAU) Sent: 09 April 2018 09:07 AM To: Nthungeni Nkhetheni (HBP) Cc: Ramothole Charlotte(GAU); Thobejane Sam (GAU); Khoza Fumani Kevin (HBP); [email protected] Subject: FW: Magalies forum meeting 06. 04.2018
Dear Mr Nthungeni
Please see the below e-mail and respond to Ms Liefferink accordingly.
Regards Madumo D.E
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______From: Mariette Liefferink [mailto:[email protected]] Sent: Wednesday, April 04, 2018 5:03 PM To: Madumo Esmy (GAU); [email protected]; 'Mashudu Maduka'; Govender Bashan (DHQ) Cc: Khoza Fumani Kevin (HBP); Thobejane Sam (GAU); magaliesburg- [email protected] Subject: RE: Magalies forum meeting 06. 04.2018
Dear Esmy
I regret that I shall not be in the position to participate in the forum since I am participating in a sediment study within the Leeuspruit (Rietspruit CMA) with Gold Fields on the same day. It is an important study and I unfortunately am not in the position to reschedule.
I wish however to kindly, albeit urgently, request a response at the Forum to the many requests by the FSE for an investigation and a report on the Protea Mine’s alleged unlawful mining activities.
Best Regards Mariette Liefferink CEO: FEDERATION FOR A SUSTAINABLE ENVIRONMENT TEL: (+27) 11 465 6910 (+27) 73 231 4893 Fax: 086 464 1509 Postnet Suite 87 Private Bag X033 RIVONIA 2128 E-MAIL: [email protected] (Please note: [email protected] is no longer functional)
From: Mariette Liefferink [mailto:[email protected]] Sent: 29 March 2018 10:20 AM To: 'Shepherd 1890'
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A MEANINGFUL RESPONSE Importance: High
Dear Magaliesburg Community
I understand your frustration.
I am regrettably not in the position to report on this matter since there has been no response from any official except Mr Bashan Govender.
The Protea Mine matter is sadly one of a growing and overwhelming body of evidence of the systemic non-enforcement by DMR officials of non-compliances by mining companies. I refer in this regard to the attached letter, dated the 19th of September 2017, to the DMR. At the time of writing we have not received a response from the DMR. We are in the process of, in terms of the provisions of the National Environmental Act (Section 31D(5-9)) to lodge a complaint to the Minister of Mineral Resources, and if the Minister of Mineral Resources fails to act, to request the Minister of Environmental Affairs to intervene.
Best Regards Mariette Liefferink CEO: FEDERATION FOR A SUSTAINABLE ENVIRONMENT TEL: (+27) 11 465 6910 (+27) 73 231 4893 Fax: 086 464 1509 Postnet Suite 87 Private Bag X033 RIVONIA 2128 E-MAIL: [email protected] (Please note: [email protected] is no longer functional)
From: Shepherd 1890 [mailto:[email protected]] Sent: 28 March 2018 08:46 AM To: Mariette Liefferink
Morning Mariette
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Do you perhaps had any feedback with regards to Protea mines, as this mine is still in operation and are currently bringing in ore from other mines to process (Doornkop mine), surely this is not allowed especially with if the rock containing high levels of radioactive heavy metal uranium, as have the majority of gold mines in the Witwatersrand mining area. This will surely have an impact on the Magaliesburg area.
It seems to me that the DMR have no intention to do anything with regards to Protea Mines, misconduct and total disregard to mining regulations.
Magaliesburg community
On Fri, Feb 9, 2018 at 9:20 AM, Mariette Liefferink
I once more refer to the above-mentioned matter and subjoined correspondence.
The FSE and our affiliates whom we copy on this e-mail, are anxiously awaiting your response since the Protea Mine, we were credibly informed, is continuing with its alleged unlawful operations.
Best Regards Mariette Liefferink CEO: FEDERATION FOR A SUSTAINABLE ENVIRONMENT TEL: (+27) 11 465 6910 (+27) 73 231 4893 Fax: 086 464 1509 Postnet Suite 87 Private Bag X033 RIVONIA 2128 E-MAIL: [email protected] (Please note: [email protected] is no longer functional)
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From: Mariette Liefferink [mailto:[email protected]] Sent: 09 February 2018 09:21 AM To: 'Govender Bashan (DHQ)'
Dear Sirs,
I once more refer to the above-mentioned matter and subjoined correspondence.
The FSE and our affiliates whom we copy on this e-mail, are anxiously awaiting your response since the Protea Mine, we were credibly informed, is continuing with its alleged unlawful operations.
Best Regards Mariette Liefferink CEO: FEDERATION FOR A SUSTAINABLE ENVIRONMENT TEL: (+27) 11 465 6910 (+27) 73 231 4893 Fax: 086 464 1509 Postnet Suite 87 Private Bag X033 RIVONIA 2128 E-MAIL: [email protected] (Please note: [email protected] is no longer functional)
From: Mariette Liefferink [mailto:[email protected]] Sent: 08 December 2017 09:29 AM To: 'Govender Bashan (DHQ)'
TAU Industries’ Prospecting Applications - via Joan Projects 91
MCF Ref: C001 TAU Industries – Draft EAP and EMP reports // Magaliesburg Community Forum
'Alex Henderson'
FOR ATTENTION: ADV. SUSAN MALEBE MESSRS SUNDAY MABASO AND JIMMY SEKGALE MESSRS GOVENDER, KEET, THOBEJANE AND KHOZA MS LILIAN SIWELANE
Dear Sirs and Mesdames,
I once more write on behalf of the Federation for a Sustainable Environment (FSE) and the Magaliesburg Community.
I refer to the above matter, the attached acknowledgement letter, dated the 2nd of November, 2017 which was attested by Adv. Malebe and correspondence in substantiation of our abortive attempts to solicit a meaningful response from the DWS and the DMR regarding the ongoing non-compliances by the Protea Mine.
The reported “administrative and governance paralysis” of the DWS and the DMR has been well documented in Reports, inter alia the recent Benchmarks Foundation’s Report, the groundWork’s Report, the Harvard Law School’s Report, the Centre of Environmental Rights’ Report, which was endorsed by 20 civil society organisations, trade unions and non-governmental organisations (attached), Parliamentary Questions and Answers, Minutes of Parliamentary Portfolio Committee Meetings, information supplied in terms of the Promotion of Access to Information Act and news media reports.
The complaints by the FSE and the Magaliesburg Community regarding the alleged failure by the DWS and the DMR to act against the Protea Mine are therefore, in view of the aforesaid, not an isolated incident but form part of a growing body of evidence of the alleged systemic failure by the DWS and the DMR to enforce non-compliances in terms of Section 19 the National Water Act (NWA) (36 of 1998) and Section 28 of the National Environmental Management Act (NEMA) (107 of 1998).
Notwithstanding the hopeless situation, we shall continue to “play a watchdog role in supporting compliance…” (NWRS-2, s 9.4.9) and as active citizens continue to “raise the concerns of the voiceless and marginalised and hold government, business and all leaders in society accountable for their actions” (the National Development Plan 2030).
In view of our non-negotiable position as civil society, we now, once again, request a report on the Protea Mine from the DWS and the DMR following their inspection of the Mine, and the actions which will be taken against the unlawful activities and the owner of the Mine.
We reserve all our rights.
TAU Industries’ Prospecting Applications - via Joan Projects 92
MCF Ref: C001 TAU Industries – Draft EAP and EMP reports // Magaliesburg Community Forum
Best Regards Mariette Liefferink CEO: FEDERATION FOR A SUSTAINABLE ENVIRONMENT TEL: (+27) 11 465 6910 (+27) 73 231 4893 Fax: 086 464 1509 Postnet Suite 87 Private Bag X033 RIVONIA 2128 E-MAIL: [email protected] (Please note: [email protected] is no longer functional)
8 DECEMBER 2017
From: Shepherd 1890 [mailto:[email protected]] Sent: 08 December 2017 06:40 AM To: Mariette Liefferink
Good morning Miss Liefferink
Hope all is well?
If possible could you help in giving us feedback with regards to the mining activities at Protea Mines (Blaauwbank Mine). We have a community meeting next week and this is one off the issues on the agenda
Your help would be highly appreciated.
Regards
Magaliesburg Community.
13 NOVEMBER 2017
------Forwarded message ------From: Sibongiseni Mthembu < > Date: Mon, Nov 13, 2017 at 9:10 AM Subject: Acknowledgement letter -Reference number :10/5/3/456 To: "[email protected]"
Good morning Mr Henderson
Kindly find the attached acknowledgement letter.
TAU Industries’ Prospecting Applications - via Joan Projects 93
MCF Ref: C001 TAU Industries – Draft EAP and EMP reports // Magaliesburg Community Forum
Regards,
31 OCTOBER 2017
From: [email protected] [mailto:] On Behalf Of [email protected] Sent: 31 October 2017 11:52 AM To: Magaliesburg Mining
Mariette Liefferink via smtpcorp.com
to Mmadikeledi, Jimmy, Govender, Keet, Khoza, Thobejane, me, Dumisani, Seipati.Dlamini, Rebone.Nkambule, Ivan, Mamalo, Makisang, sunday.mabaso, Carol, d.zoekop Dear Mr Sekgale (and respected co-recipients),
I refer to the above matter, the subjoined correspondence and our telephonic discussion this afternoon, for which I thank you sincerely.
I, on behalf of the Federation for a Sustainable Environment (FSE), hereby respectfully, albeit urgently request you to investigate the allegations of non-compliance by Protea Mines, within Magaliesburg area.
I furthermore request Messrs Khoza and Thobejane to include a discussion of the Protea Mines and its operations without an alleged water use license (WUL) during the Magaliesburg Catchment Forum meeting on Tuesday, the 24th of October, 2017 at Magaliesburg Civic Centre at 10am. I suggest that Mr Alex Henderson, on behalf of the complainants, participate in the discussion.
In anticipation, please accept my sincere thanks.
Best Regards Mariette Liefferink CEO: FEDERATION FOR A SUSTAINABLE ENVIRONMENT TEL: (+27) 11 465 6910 (+27) 73 231 4893 Fax: 086 464 1509
TAU Industries’ Prospecting Applications - via Joan Projects 94
MCF Ref: C001 TAU Industries – Draft EAP and EMP reports // Magaliesburg Community Forum
Postnet Suite 87 Private Bag X033 RIVONIA 2128 E-MAIL: [email protected] (Please note: [email protected] is no longer functional)
20 OCTOBER 2017
From: Alex Henderson [mailto:] Sent: 20 October 2017 07:44 AM To: [email protected] Subject: Protea Mines, Magaliesburg
Good Morning
As a citizen of Magaliesburg I write this letter with great concern, with regards to the Protea Mines (owner Salven Chetty), The mine previously called Blaauwbank mine, was declared a historical museum and a tourist attraction in Magaliesburg.
Since the current owner bought this mine, the museum was closed down, He is currently busy with unlawful mining activities, it was bought under the attention of the Magaliesburg Community that on the 24th October 2017 a lawful march against Protea Mines, from the community, with the intention to give Mr. Chetty a memorandum of demands, addressing the appalling working conditions and treatment of employees/community.
It was also brought under the community's attention of Mr. Chetty non-compliance to the Department of Minerals, NEMA regulations and acts. None of the following legislative documentation are in place:
Environmental Management Programme Report (EMPR) Environmental Impact Assessment (EIA) Approved Water Use License Environmental Management Programme (EMP) Environmental Impact Assessment Report (EIAR) Financial guarantee for rehabilitation and Proof of payment (compliance) Regulation Chapter 14 – Statistical Returns
Other serious non-compliance to DMR Legislation. a. Material processed - Report to Regional Principal Inspector “9.2(7) The employer must annually submit to the regional principal inspector of mines, on forms 21.9(2)(a); 21.9(2)(b); 21.9(2)(c) and 21.9(2)(d), respectively, prescribed in chapter 21, and within 30 days from the end of the relevant annual reporting period as indicated on each form, reports which contains quarterly information on the airborne pollutant, heat stress, cold stress and noise aspects of the system of occupational hygiene measurements, established and maintained in terms of regulation 9.2(2),” He is currently processing material brought in by trucks, form other area's, leading to contamination. b. Contamination from Plant – The area below the plant are getting contaminated and no prevention for contamination in place, contaminated water allowed to flow into river catchment area. c. Mine residue dumps – dumps not constructed according to DMR guidelines, no permission from DMR.
TAU Industries’ Prospecting Applications - via Joan Projects 95
MCF Ref: C001 TAU Industries – Draft EAP and EMP reports // Magaliesburg Community Forum
COP’s – Non-compliance to all codes of practice as per DMR legislation.
Acid mine drainage regulation: By running the plant (using cyanide extraction) and not adhering to the regulation set by the regulating bodies, AMD carries a potential threat to the environment as a whole, it poses a particular threat to the water resources which will have severe consequences for the health and well-being of our community, as the mine is directly above a river, and the community utilize this water for daily use. As a very concerned community addressing this letter to you, hopefully you will be able to address the above concerns urgently, as we have informed the DMR previously and nothing was done with regards to our complaints, concerns
Regards
Alex Henderson
24 OCTOBER 2017
-----Original Message----- From: Govender Bashan (DHQ) [mailto:[email protected]] Sent: 24 October 2017 09:33 PM To: Mariette Liefferink
Ayanda, Divan
Pls discuss with me to ensure matters in our ambit are duly attended to or directed aptly. Thank you.
Bashan
24 OCTOBER 2017 ______From: Mariette Liefferink [[email protected]] Sent: 24 October 2017 07:24 PM To: Siwelane Lilian (GAU); Thobejane Sam (GAU); Khoza Fumani Kevin (HBP); Tema Charlotte (GAU) Cc: 'Sophia Tlale'; [email protected]; 'Lucien Limacher'; Govender Bashan (DHQ); Keet Marius (DHQ) Subject: PURSUANT TO MAGALIESBURG CATCHMENT MANAGEMENT FORUM MEETING TODAY - RETRANSMISSION OF DOCUMENTS
Dear All,
I write on behalf of the Federation for a Sustainable Environment (FSE).
TAU Industries’ Prospecting Applications - via Joan Projects 96
MCF Ref: C001 TAU Industries – Draft EAP and EMP reports // Magaliesburg Community Forum
I refer to today’s Magaliesburg CMF meeting, which although poorly attended was a meaningful meeting. I thank Mr Thobejane, Mr Khoza and the DWS officials sincerely for their commitment and willingness to address the Forum’s issues of concern.
I, hereby, as promised, retransmit the attached documents. I apologise for my oversight regarding Ms Siwelane’s e-mail address.
With reference to the water quality in the Tweelopiespruit, I, on behalf of the FSE, respectfully request the water quality results of the neutralised mine water, which is discharged into the Tweelopiespruit for the period August, September and October 2017. As you may reflect, the regular monitoring of the water quality was one of the conditions of the legally binding Environmental Authorisation.
With reference to the attached Inspection Report by the DEA, dated the 8th and 9th of December, 2014, we furthermore request an internal audit by the DWS to determine whether the conditions contained within the Environmental Authorization are being adhered to by the authorisation holder (i.e. the DWS), after the effluxion of 3 years since the DEA’s inspection. I attach the Environmental Authorisation hereto for ease of reference.
In order to assist with the Minutes, I hereby record that during the meeting today and in terms of the Agenda, I requested the DWS to:
1. Enforce the non-compliances by the Protea Mine (Blaauwbank Mine) with the pre-directive which was issued by the DWS in 2016, that is, almost one year ago.
2. Enforce the contraventions of the NWA by companies which operate without water use licenses e.g. Rhino Quarry.
3. Enforce the condition in the WULs of holders of WULs to participate in the CMFs e.g. Mintails and others.
4. Continue to invite Mr Thulani Mbonambi to present the baseline information for the Magalies Catchment at the Magaliesburg CMF.
I furthermore requested:
1. Sibanye-Stillwater to present the results of its biomonitoring of the Tweelopiespruit.
2. Messrs Keet and Govender’s assistance with the identification of the cause of the damp and increase in the water table of Mr Valentine and his community within Home Lake, Randfontein and to determine whether or not it is related to the restoration of pre-mining flow patterns and volumes and/or the backfilling of the West Wits Pit.
We trust that our requests will not be passed over.
Best Regards Mariette Liefferink CEO: FEDERATION FOR A SUSTAINABLE ENVIRONMENT TEL: (+27) 11 465 6910 (+27) 73 231 4893 Fax: 086 464 1509 Postnet Suite 87 Private Bag X033
TAU Industries’ Prospecting Applications - via Joan Projects 97
MCF Ref: C001 TAU Industries – Draft EAP and EMP reports // Magaliesburg Community Forum
RIVONIA 2128 E-MAIL: [email protected]
From: Mariette Liefferink [mailto:[email protected]] Sent: 08 December 2017 09:29 AM To: 'Govender Bashan (DHQ)'
FOR ATTENTION: ADV. SUSAN MALEBE MESSRS SUNDAY MABASO AND JIMMY SEKGALE MESSRS GOVENDER, KEET, THOBEJANE AND KHOZA MS LILIAN SIWELANE
Dear Sirs and Mesdames,
I once more write on behalf of the Federation for a Sustainable Environment (FSE) and the Magaliesburg Community.
I refer to the above matter, the attached acknowledgement letter, dated the 2nd of November, 2017 which was attested by Adv. Malebe and correspondence in substantiation of our abortive attempts to solicit a meaningful response from the DWS and the DMR regarding the ongoing non-compliances by the Protea Mine.
The reported “administrative and governance paralysis” of the DWS and the DMR has been well documented in Reports, inter alia the recent Benchmarks Foundation’s Report, the groundWork’s Report, the Harvard Law School’s Report, the Centre of Environmental Rights’ Report, which was endorsed by 20 civil society organisations, trade unions and non-governmental organisations (attached), Parliamentary Questions and Answers, Minutes of Parliamentary Portfolio Committee Meetings, information supplied in terms of the Promotion of Access to Information Act and news media reports.
TAU Industries’ Prospecting Applications - via Joan Projects 98
MCF Ref: C001 TAU Industries – Draft EAP and EMP reports // Magaliesburg Community Forum
The complaints by the FSE and the Magaliesburg Community regarding the alleged failure by the DWS and the DMR to act against the Protea Mine are therefore, in view of the aforesaid, not an isolated incident but form part of a growing body of evidence of the alleged systemic failure by the DWS and the DMR to enforce non-compliances in terms of Section 19 the National Water Act (NWA) (36 of 1998) and Section 28 of the National Environmental Management Act (NEMA) (107 of 1998).
Notwithstanding the hopeless situation, we shall continue to “play a watchdog role in supporting compliance…” (NWRS-2, s 9.4.9) and as active citizens continue to “raise the concerns of the voiceless and marginalised and hold government, business and all leaders in society accountable for their actions” (the National Development Plan 2030).
In view of our non-negotiable position as civil society, we now, once again, request a report on the Protea Mine from the DWS and the DMR following their inspection of the Mine, and the actions which will be taken against the unlawful activities and the owner of the Mine.
We reserve all our rights.
Best Regards Mariette Liefferink CEO: FEDERATION FOR A SUSTAINABLE ENVIRONMENT TEL: (+27) 11 465 6910 (+27) 73 231 4893 Fax: 086 464 1509 Postnet Suite 87 Private Bag X033 RIVONIA 2128 E-MAIL: [email protected] (Please note: [email protected] is no longer functional)
8 DECEMBER 2017
From: Shepherd 1890 [mailto:[email protected]] Sent: 08 December 2017 06:40 AM To: Mariette Liefferink
Good morning Miss Liefferink
Hope all is well?
If possible could you help in giving us feedback with regards to the mining activities at Protea Mines (Blaauwbank Mine). We have a community meeting next week and this is one off the issues on the agenda
Your help would be highly appreciated.
TAU Industries’ Prospecting Applications - via Joan Projects 99
MCF Ref: C001 TAU Industries – Draft EAP and EMP reports // Magaliesburg Community Forum
Regards
Magaliesburg Community.
13 NOVEMBER 2017
------Forwarded message ------From: Sibongiseni Mthembu < > Date: Mon, Nov 13, 2017 at 9:10 AM Subject: Acknowledgement letter -Reference number :10/5/3/456 To: "[email protected]"
Good morning Mr Henderson
Kindly find the attached acknowledgement letter.
Regards,
31 OCTOBER 2017
From: [email protected] [mailto:] On Behalf Of [email protected] Sent: 31 October 2017 11:52 AM To: Magaliesburg Mining
Mariette Liefferink via smtpcorp.com
to Mmadikeledi, Jimmy, Govender, Keet, Khoza, Thobejane, me, Dumisani, Seipati.Dlamini, Rebone.Nkambule, Ivan, Mamalo, Makisang, sunday.mabaso, Carol, d.zoekop Dear Mr Sekgale (and respected co-recipients),
I refer to the above matter, the subjoined correspondence and our telephonic discussion this afternoon, for which I thank you sincerely.
TAU Industries’ Prospecting Applications - via Joan Projects 100
MCF Ref: C001 TAU Industries – Draft EAP and EMP reports // Magaliesburg Community Forum
I, on behalf of the Federation for a Sustainable Environment (FSE), hereby respectfully, albeit urgently request you to investigate the allegations of non-compliance by Protea Mines, within Magaliesburg area.
I furthermore request Messrs Khoza and Thobejane to include a discussion of the Protea Mines and its operations without an alleged water use license (WUL) during the Magaliesburg Catchment Forum meeting on Tuesday, the 24th of October, 2017 at Magaliesburg Civic Centre at 10am. I suggest that Mr Alex Henderson, on behalf of the complainants, participate in the discussion.
In anticipation, please accept my sincere thanks.
Best Regards Mariette Liefferink CEO: FEDERATION FOR A SUSTAINABLE ENVIRONMENT TEL: (+27) 11 465 6910 (+27) 73 231 4893 Fax: 086 464 1509 Postnet Suite 87 Private Bag X033 RIVONIA 2128 E-MAIL: [email protected] (Please note: [email protected] is no longer functional)
20 OCTOBER 2017
From: Alex Henderson [mailto:] Sent: 20 October 2017 07:44 AM To: [email protected] Subject: Protea Mines, Magaliesburg
Good Morning
As a citizen of Magaliesburg I write this letter with great concern, with regards to the Protea Mines (owner Salven Chetty), The mine previously called Blaauwbank mine, was declared a historical museum and a tourist attraction in Magaliesburg.
Since the current owner bought this mine, the museum was closed down, He is currently busy with unlawful mining activities, it was bought under the attention of the Magaliesburg Community that on the 24th October 2017 a lawful march against Protea Mines, from the community, with the intention to give Mr. Chetty a memorandum of demands, addressing the appalling working conditions and treatment of employees/community.
It was also brought under the community's attention of Mr. Chetty non-compliance to the Department of Minerals, NEMA regulations and acts. Non of the following legislative documentation are in place:
Environmental Management Programme Report (EMPR) Environmental Impact Assessment (EIA) Approved Water Use License Environmental Management Programme (EMP) Environmental Impact Assessment Report (EIAR)
TAU Industries’ Prospecting Applications - via Joan Projects 101
MCF Ref: C001 TAU Industries – Draft EAP and EMP reports // Magaliesburg Community Forum
Financial guarantee for rehabilitation and Proof of payment (compliance) Regulation Chapter 14 – Statistical Returns
Other serious non-compliance to DMR Legislation. a. Material processed - Report to Regional Principal Inspector “9.2(7) The employer must annually submit to the regional principal inspector of mines, on forms 21.9(2)(a); 21.9(2)(b); 21.9(2)(c) and 21.9(2)(d), respectively, prescribed in chapter 21, and within 30 days from the end of the relevant annual reporting period as indicated on each form, reports which contains quarterly information on the airborne pollutant, heat stress, cold stress and noise aspects of the system of occupational hygiene measurements, established and maintained in terms of regulation 9.2(2),” He is currently processing material brought in by trucks, form other area's, leading to contamination. b. Contamination from Plant – The area below the plant are getting contaminated and no prevention for contamination in place, contaminated water allowed to flow into river catchment area. c. Mine residue dumps – dumps not constructed according to DMR guidelines, no permission from DMR. COP’s – Non-compliance to all codes of practice as per DMR legislation. Acid mine drainage regulation: By running the plant (using cyanide extraction) and not adhering to the regulation set by the regulating bodies, AMD carries a potential threat to the environment as a whole, it poses a particular threat to the water resources which will have severe consequences for the health and well-being of our community, as the mine is directly above a river, and the community utilize this water for daily use. As a very concerned community addressing this letter to you, hopefully you will be able to address the above concerns urgently, as we have informed the DMR previously and nothing was done with regards to our complaints, concerns
Regards
Alex Henderson
24 OCTOBER 2017
-----Original Message----- From: Govender Bashan (DHQ) [mailto:[email protected]] Sent: 24 October 2017 09:33 PM To: Mariette Liefferink
Ayanda, Divan
TAU Industries’ Prospecting Applications - via Joan Projects 102
MCF Ref: C001 TAU Industries – Draft EAP and EMP reports // Magaliesburg Community Forum
Pls discuss with me to ensure matters in our ambit are duly attended to or directed aptly. Thank you.
Bashan
24 OCTOBER 2017 ______From: Mariette Liefferink [[email protected]] Sent: 24 October 2017 07:24 PM To: Siwelane Lilian (GAU); Thobejane Sam (GAU); Khoza Fumani Kevin (HBP); Tema Charlotte (GAU) Cc: 'Sophia Tlale'; [email protected]; 'Lucien Limacher'; Govender Bashan (DHQ); Keet Marius (DHQ) Subject: PURSUANT TO MAGALIESBURG CATCHMENT MANAGEMENT FORUM MEETING TODAY - RETRANSMISSION OF DOCUMENTS
Dear All,
I write on behalf of the Federation for a Sustainable Environment (FSE).
I refer to today’s Magaliesburg CMF meeting, which although poorly attended was a meaningful meeting. I thank Mr Thobejane, Mr Khoza and the DWS officials sincerely for their commitment and willingness to address the Forum’s issues of concern.
I, hereby, as promised, retransmit the attached documents. I apologise for my oversight regarding Ms Siwelane’s e-mail address.
With reference to the water quality in the Tweelopiespruit, I, on behalf of the FSE, respectfully request the water quality results of the neutralised mine water, which is discharged into the Tweelopiespruit for the period August, September and October 2017. As you may reflect, the regular monitoring of the water quality was one of the conditions of the legally binding Environmental Authorisation.
With reference to the attached Inspection Report by the DEA, dated the 8th and 9th of December, 2014, we furthermore request an internal audit by the DWS to determine whether the conditions contained within the Environmental Authorization are being adhered to by the authorisation holder (i.e. the DWS), after the effluxion of 3 years since the DEA’s inspection. I attach the Environmental Authorisation hereto for ease of reference.
In order to assist with the Minutes, I hereby record that during the meeting today and in terms of the Agenda, I requested the DWS to:
1. Enforce the non-compliances by the Protea Mine (Blaauwbank Mine) with the pre-directive which was issued by the DWS in 2016, that is, almost one year ago.
2. Enforce the contraventions of the NWA by companies which operate without water use licenses e.g. Rhino Quarry.
3. Enforce the condition in the WULs of holders of WULs to participate in the CMFs e.g. Mintails and others.
4. Continue to invite Mr Thulani Mbonambi to present the baseline information for the Magalies Catchment at the Magaliesburg CMF.
TAU Industries’ Prospecting Applications - via Joan Projects 103
MCF Ref: C001 TAU Industries – Draft EAP and EMP reports // Magaliesburg Community Forum
I furthermore requested:
1. Sibanye-Stillwater to present the results of its biomonitoring of the Tweelopiespruit.
2. Messrs Keet and Govender’s assistance with the identification of the cause of the damp and increase in the water table of Mr Valentine and his community within Home Lake, Randfontein and to determine whether or not it is related to the restoration of pre-mining flow patterns and volumes and/or the backfilling of the West Wits Pit.
We trust that our requests will not be passed over.
Best Regards Mariette Liefferink CEO: FEDERATION FOR A SUSTAINABLE ENVIRONMENT TEL: (+27) 11 465 6910 (+27) 73 231 4893 Fax: 086 464 1509 Postnet Suite 87 Private Bag X033 RIVONIA 2128 E-MAIL: [email protected]
From: Mariette Liefferink [mailto:[email protected]] Sent: 06 November 2017 03:18 PM To: 'Shepherd 1890'
Dear Sir/Madam
The alleged contraventions by the Protea Mine was discussed during the Magaliesburg Catchment Management Forum Meeting on the 24th of October 2017.
Please see attached hereto my recollection of the Meeting. Reference is made to Protea Mine (para 5, item number 1).
TAU Industries’ Prospecting Applications - via Joan Projects 104
MCF Ref: C001 TAU Industries – Draft EAP and EMP reports // Magaliesburg Community Forum
I furthermore recollect that the DWS confirmed that a pre-directive or notice of intention to issue a directive was issued to the Protea Mine. The DWS officials confirmed that an inspection was conducted. I requested that the non-compliance with the pre-directive be enforced.
I hereby respectfully request Ms Lilia Siwelane to report on the matter and Mr Jimmy Sekgale to also respond.
It is sincerely hoped that we shall receive a response with reasonable promptitude from the responsible officials.
In the absence of a response, I recommend that we escalate the matter. In terms of Section 31 of the National Environmental Management Act, we have the option to whistleblow the alleged non-compliances and non-enforcement to the relevant Parliamentary Portfolio Committees, the news media, the relevant Director Generals, the South African Human Rights Commission, the Office of the Public Protector and/or to lay criminal charges against Mr Chetty at the local police station.
Best Regards Mariette Liefferink CEO: FEDERATION FOR A SUSTAINABLE ENVIRONMENT TEL: (+27) 11 465 6910 (+27) 73 231 4893 Fax: 086 464 1509 Postnet Suite 87 Private Bag X033 RIVONIA 2128 E-MAIL: [email protected] (Please note: [email protected] is no longer functional)
From: Shepherd 1890 [mailto:[email protected]] Sent: 06 November 2017 02:41 PM To: [email protected] Cc: Mmadikeledi Malebe
Good Afternoon Miss Liefferink
As per correspondence below, with regards to Protea mines. As you most probable heard that the EFF together with the Magaliesburg Community and workers of Protea mines have embarked on a legal protest dated 24 October 2017, were a memorandum was handed to the
TAU Industries’ Prospecting Applications - via Joan Projects 105
MCF Ref: C001 TAU Industries – Draft EAP and EMP reports // Magaliesburg Community Forum
owner Salven Chetty. According to Mr. Chetty, the mine is not operational, but this is a total lie, as the plant are working and the people are working underground...This is currently been done by a contractor.
If possible could you give some feedback weather anything have been done, with regards to the Magaliesburg community concerned raised.
Hopefully we will have feedback very soon
Regards
Concerned Magaliesburg Resident
------Forwarded message ------From: Mariette Liefferink
I refer to the above matter, the subjoined correspondence and our telephonic discussion this afternoon, for which I thank you sincerely.
I, on behalf of the Federation for a Sustainable Environment (FSE), hereby respectfully, albeit urgently request you to investigate the allegations of non-compliance by Protea Mines, within Magaliesburg area.
I furthermore request Messrs Khoza and Thobejane to include a discussion of the Protea Mines and its operations without an alleged water use license (WUL) during the Magaliesburg Catchment Forum meeting on Tuesday, the 24th of October, 2017 at Magaliesburg Civic Centre at 10am. I suggest that Mr Alex Henderson, on behalf of the complainants, participate in the discussion.
In anticipation, please accept my sincere thanks.
Best Regards Mariette Liefferink CEO: FEDERATION FOR A SUSTAINABLE ENVIRONMENT TEL: (+27) 11 465 6910 (+27) 73 231 4893 Fax: 086 464 1509 Postnet Suite 87 Private Bag X033
TAU Industries’ Prospecting Applications - via Joan Projects 106
MCF Ref: C001 TAU Industries – Draft EAP and EMP reports // Magaliesburg Community Forum
RIVONIA 2128 E-MAIL: [email protected] (Please note: [email protected] is no longer functional)
From: Alex Henderson [mailto:] Sent: 20 October 2017 07:44 AM To: [email protected] Subject: Protea Mines, Magaliesburg
Good Morning
As a citizen of Magaliesburg I write this letter with great concern, with regards to the Protea Mines (owner Salven Chetty), The mine previously called Blaauwbank mine, was declared a historical museum and a tourist attraction in Magaliesburg.
Since the current owner bought this mine, the museum was closed down, He is currently busy with unlawful mining activities, it was bought under the attention of the Magaliesburg Community that on the 24th October 2017 a lawful march against Protea Mines, from the community, with the intention to give Mr. Chetty a memorandum of demands, addressing the appalling working conditions and treatment of employees/community.
It was also brought under the community's attention of Mr. Chetty non-compliance to the Department of Minerals, NEMA regulations and acts. Non of the following legislative documentation are in place:
Environmental Management Programme Report (EMPR) Environmental Impact Assessment (EIA) Approved Water Use License Environmental Management Programme (EMP) Environmental Impact Assessment Report (EIAR) Financial guarantee for rehabilitation and Proof of payment (compliance) Regulation Chapter 14 – Statistical Returns
Other serious non-compliance to DMR Legislation. a. Material processed - Report to Regional Principal Inspector “9.2(7) The employer must annually submit to the regional principal inspector of mines, on forms 21.9(2)(a); 21.9(2)(b); 21.9(2)(c) and 21.9(2)(d), respectively, prescribed in chapter 21, and within 30 days from the end of the relevant annual reporting period as indicated on each form, reports which contains quarterly information on the airborne pollutant, heat stress, cold stress and noise aspects of the system of occupational hygiene measurements, established and maintained in terms of regulation 9.2(2),” He is currently processing material brought in by trucks, form other area's, leading to contamination. b. Contamination from Plant – The area below the plant are getting contaminated and no prevention for contamination in place, contaminated water allowed to flow into river catchment area. c. Mine residue dumps – dumps not constructed according to DMR guidelines, no permission from DMR. COP’s – Non-compliance to all codes of practice as per DMR legislation. Acid mine drainage regulation: By running the plant (using cyanide extraction) and not adhering to the regulation set by the regulating bodies, AMD carries a potential threat to the environment as a whole, it poses a particular threat
TAU Industries’ Prospecting Applications - via Joan Projects 107
MCF Ref: C001 TAU Industries – Draft EAP and EMP reports // Magaliesburg Community Forum
to the water resources which will have severe consequences for the health and well-being of our community, as the mine is directly above a river, and the community utilize this water for daily use. As a very concerned community addressing this letter to you, hopefully you will be able to address the above concerns urgently, as we have informed the DMR previously and nothing was done with regards to our complaints, concerns
Regards
Alex Henderson
-----Original Message----- From: Mariette Liefferink [mailto:[email protected]] Sent: 24 October 2017 09:54 PM To: 'Govender Bashan (DHQ)'
Dear Bashan
I thank you sincerely for your prompt response!
Best Regards Mariette Liefferink CEO: FEDERATION FOR A SUSTAINABLE ENVIRONMENT TEL: (+27) 11 465 6910 (+27) 73 231 4893 Fax: 086 464 1509 Postnet Suite 87 Private Bag X033 RIVONIA 2128 E-MAIL: [email protected] (Please note: [email protected] is no longer functional)
-----Original Message----- From: Govender Bashan (DHQ) [mailto:[email protected]] Sent: 24 October 2017 09:33 PM To: Mariette Liefferink
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Cc: 'Sophia Tlale'
Ayanda, Divan
Pls discuss with me to ensure matters in our ambit are duly attended to or directed aptly. Thank you.
Bashan
From: Mariette Liefferink [mailto:[email protected]] Sent: 24 October 2017 07:25 PM To: 'Siwelane Lilian (GAU)'
Dear All,
I write on behalf of the Federation for a Sustainable Environment (FSE).
I refer to today’s Magaliesburg CMF meeting, which although poorly attended was a meaningful meeting. I thank Mr Thobejane, Mr Khoza and the DWS officials sincerely for their commitment and willingness to address the Forum’s issues of concern.
I, hereby, as promised, retransmit the attached documents. I apologise for my oversight regarding Ms Siwelane’s e-mail address. ...
In order to assist with the Minutes, I hereby record that during the meeting today and in terms of the Agenda, I requested the DWS to:
Enforce the non-compliances by the Protea Mine (Blaauwbank Mine) with the pre- directive which was issued by the DWS in 2016, that is, almost one year ago. …
We trust that our requests will not be passed over.
Best Regards Mariette Liefferink CEO: FEDERATION FOR A SUSTAINABLE ENVIRONMENT TEL: (+27) 11 465 6910 (+27) 73 231 4893
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Fax: 086 464 1509 Postnet Suite 87 Private Bag X033 RIVONIA 2128 E-MAIL: [email protected] (Please note: [email protected] is no longer functional)
-----Original Message----- From: Mariette Liefferink [mailto:[email protected]] Sent: 21 October 2017 12:21 PM To: 'Govender Bashan (DHQ)'
Dear Bashan,
I thank you sincerely.
We shall much appreciate a report pertaining to the investigation.
Best Regards Mariette Liefferink CEO: FEDERATION FOR A SUSTAINABLE ENVIRONMENT TEL: (+27) 11 465 6910 (+27) 73 231 4893 Fax: 086 464 1509 Postnet Suite 87 Private Bag X033 RIVONIA 2128 E-MAIL: [email protected] (Please note: [email protected] is no longer functional)
-----Original Message----- From: Govender Bashan (DHQ) [mailto:[email protected]] Sent: 21 October 2017 08:09 AM To: Jimmy Sekgale
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Dear Ayanda, Desmond
Please take the lead & involve relevant DWS personnel to give support to the DMR. Thank you.
Regards Bashan
______From: Jimmy Sekgale [[email protected]] Sent: 20 October 2017 10:01 PM To: Mariette Liefferink Cc: [email protected]; Dumisani Hlongwane; Sunday Mabaso; Carol Khanyile; [email protected]; Govender Bashan (DHQ); Keet Marius (DHQ) Subject: RE: URGENT REQUEST FOR INVESTIGATION AND INTERVENTION: Protea Mines, Magaliesburg
Dear Miss Liefferink,
Your email is hereby acknowledged, however you are requested to specify the alleged non- compliances to enable the region to investigate and report back.
I hope you find this in order
Kind Regards
Jimmy Sekgale
Jimmy Sekgale Mineral Regulation Tel : 011 358 9773 Email : [email protected]
[@DMR_SA]
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Subject: URGENT REQUEST FOR INVESTIGATION AND INTERVENTION: Protea Mines, Magaliesburg
Dear Mr Sekgale (and respected co-recipients),
I refer to the above matter, the subjoined correspondence and our telephonic discussion this afternoon, for which I thank you sincerely.
I, on behalf of the Federation for a Sustainable Environment (FSE), hereby respectfully, albeit urgently request you to investigate the allegations of non-compliance by Protea Mines, within Magaliesburg area.
I furthermore request Messrs Khoza and Thobejane to include a discussion of the Protea Mines and its operations without an alleged water use license (WUL) during the Magaliesburg Catchment Forum meeting on Tuesday, the 24th of October, 2017 at Magaliesburg Civic Centre at 10am. I suggest that Mr Alex Henderson, on behalf of the complainants, participate in the discussion.
In anticipation, please accept my sincere thanks.
Best Regards Mariette Liefferink CEO: FEDERATION FOR A SUSTAINABLE ENVIRONMENT TEL: (+27) 11 465 6910 (+27) 73 231 4893 Fax: 086 464 1509 Postnet Suite 87 Private Bag X033 RIVONIA 2128 E-MAIL: [email protected]
From: Alex Henderson [mailto:] Sent: 20 October 2017 07:44 AM To: [email protected]
Good Morning
As a citizen of Magaliesburg I write this letter with great concern, with regards to the Protea Mines (owner Salven Chetty), The mine previously called Blaauwbank mine, was declared a historical museum and a tourist attraction in Magaliesburg.
Since the current owner bought this mine, the museum was closed down, He is currently busy with unlawful mining activities, it was bought under the attention of the Magaliesburg Community that on the 24th October 2017 a lawful march against Protea Mines, from the
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community, with the intention to give Mr. Chetty a memorandum of demands, addressing the appalling working conditions and treatment of employees/community.
It was also brought under the community's attention of Mr. Chetty non-compliance to the Department of Minerals, NEMA regulations and acts. Non of the following legislative documentation are in place:
Environmental Management Programme Report (EMPR) Environmental Impact Assessment (EIA) Approved Water Use License Environmental Management Programme (EMP) Environmental Impact Assessment Report (EIAR) Financial guarantee for rehabilitation and Proof of payment (compliance) Regulation Chapter 14 – Statistical Returns
Other serious non-compliance to DMR Legislation.
a. Material processed - Report to Regional Principal Inspector “9.2(7) The employer must annually submit to the regional principal inspector of mines, on forms 21.9(2)(a); 21.9(2)(b); 21.9(2)(c) and 21.9(2)(d), respectively, prescribed in chapter 21, and within 30 days from the end of the relevant annual reporting period as indicated on each form, reports which contains quarterly information on the airborne pollutant, heat stress, cold stress and noise aspects of the system of occupational hygiene measurements, established and maintained in terms of regulation 9.2(2),” He is currently processing material brought in by trucks, form other area's, leading to contamination.
b. Contamination from Plant – The area below the plant are getting contaminated and no prevention for contamination in place, contaminated water allowed to flow into river catchment area.
c. Mine residue dumps – dumps not constructed according to DMR guidelines, no permission from DMR.
1. COP’s – Non-compliance to all codes of practice as per DMR legislation. 2. Acid mine drainage regulation: By running the plant (using cyanide extraction) and not adhering to the regulation set by the regulating bodies, AMD carries a potential threat to the environment as a whole, it poses a particular threat to the water resources which will have severe consequences for the health and well-being of our community, as the mine is directly above a river, and the community utilize this water for daily use. As a very concerned community addressing this letter to you, hopefully you will be able to address the above concerns urgently, as we have informed the DMR previously and nothing was done with regards to our complaints, concerns
Regards
Alex Henderson
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MCF Ref: C001 TAU Industries – Draft EAP and EMP reports // Magaliesburg Community Forum
From: Mariette Liefferink [mailto:[email protected]] Sent: 21 October 2017 12:04 PM To: 'Jimmy Sekgale'
Dear Mr Sekgale
I thank you sincerely for your prompt response.
In compliance with your advice, I hereby confirm that I shall establish contact with the complainants and provide you with a list of alleged non-compliances.
Best Regards Mariette Liefferink CEO: FEDERATION FOR A SUSTAINABLE ENVIRONMENT TEL: (+27) 11 465 6910 (+27) 73 231 4893 Fax: 086 464 1509 Postnet Suite 87 Private Bag X033 RIVONIA 2128 E-MAIL: [email protected] (Please note: [email protected] is no longer functional)
From: Jimmy Sekgale [mailto:[email protected]] Sent: 20 October 2017 10:02 PM To: Mariette Liefferink
Dear Miss Liefferink,
Your email is hereby acknowledged, however you are requested to specify the alleged non- compliances to enable the region to investigate and report back.
I hope you find this in order
Kind Regards
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MCF Ref: C001 TAU Industries – Draft EAP and EMP reports // Magaliesburg Community Forum
Jimmy Sekgale
Jimmy Sekgale Mineral Regulation Tel : 011 358 9773 Email : [email protected] Website :
From: Mariette Liefferink [mailto:[email protected]] Sent: Friday, October 20, 2017 3:18 PM To: Mmadikeledi Malebe; Jimmy Sekgale; 'Govender Bashan (DHQ)'; 'Keet Marius (DHQ)'; 'Khoza Fumani Kevin (HBP)'; 'Thobejane Sam (GAU)' Cc: [email protected]; Dumisani Hlongwane; Seipati Dhlamini; Rebone Nkambule; Ivan Moloto; Mamalo Majola; Makisang Dlamini; Sunday Mabaso; Carol Khanyile; [email protected] Subject: URGENT REQUEST FOR INVESTIGATION AND INTERVENTION: Protea Mines, Magaliesburg
Dear Mr Sekgale (and respected co-recipients),
I refer to the above matter, the subjoined correspondence and our telephonic discussion this afternoon, for which I thank you sincerely.
I, on behalf of the Federation for a Sustainable Environment (FSE), hereby respectfully, albeit urgently request you to investigate the allegations of non-compliance by Protea Mines, within Magaliesburg area.
I furthermore request Messrs Khoza and Thobejane to include a discussion of the Protea Mines and its operations without an alleged water use license (WUL) during the Magaliesburg Catchment Forum meeting on Tuesday, the 24th of October, 2017 at Magaliesburg Civic Centre at 10am. I suggest that Mr Alex Henderson, on behalf of the complainants, participate in the discussion.
In anticipation, please accept my sincere thanks.
Best Regards Mariette Liefferink CEO: FEDERATION FOR A SUSTAINABLE ENVIRONMENT TEL: (+27) 11 465 6910 (+27) 73 231 4893 Fax: 086 464 1509
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Postnet Suite 87 Private Bag X033 RIVONIA 2128 E-MAIL: [email protected] (Please note: [email protected] is no longer functional)
From: Alex Henderson [mailto:] Sent: 20 October 2017 07:44 AM To: [email protected] Subject: Protea Mines, Magaliesburg
Good Morning
As a citizen of Magaliesburg I write this letter with great concern, with regards to the Protea Mines (owner Salven Chetty), The mine previously called Blaauwbank mine, was declared a historical museum and a tourist attraction in Magaliesburg.
Since the current owner bought this mine, the museum was closed down, He is currently busy with unlawful mining activities, it was bought under the attention of the Magaliesburg Community that on the 24th October 2017 a lawful march against Protea Mines, from the community, with the intention to give Mr. Chetty a memorandum of demands, addressing the appalling working conditions and treatment of employees/community.
It was also brought under the community's attention of Mr. Chetty non-compliance to the Department of Minerals, NEMA regulations and acts. Non of the following legislative documentation are in place:
Environmental Management Programme Report (EMPR) Environmental Impact Assessment (EIA) Approved Water Use License Environmental Management Programme (EMP) Environmental Impact Assessment Report (EIAR) Financial guarantee for rehabilitation and Proof of payment (compliance) Regulation Chapter 14 – Statistical Returns
Other serious non-compliance to DMR Legislation. Material processed - Report to Regional Principal Inspector “9.2(7) The employer must annually submit to the regional principal inspector of mines, on forms 21.9(2)(a); 21.9(2)(b); 21.9(2)(c) and 21.9(2)(d), respectively, prescribed in chapter 21, and within 30 days from the end of the relevant annual reporting period as indicated on each form, reports which contains quarterly information on the airborne pollutant, heat stress, cold stress and noise aspects of the system of occupational hygiene measurements, established and maintained in terms of regulation 9.2(2),” He is currently processing material brought in by trucks, form other area's, leading to contamination. Contamination from Plant – The area below the plant are getting contaminated and no prevention for contamination in place, contaminated water allowed to flow into river catchment area. Mine residue dumps – dumps not constructed according to DMR guidelines, no permission from DMR. COP’s – Non-compliance to all codes of practice as per DMR legislation.
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Acid mine drainage regulation: By running the plant (using cyanide extraction) and not adhering to the regulation set by the regulating bodies, AMD carries a potential threat to the environment as a whole, it poses a particular threat to the water resources which will have severe consequences for the health and well-being of our community, as the mine is directly above a river, and the community utilize this water for daily use. As a very concerned community addressing this letter to you, hopefully you will be able to address the above concerns urgently, as we have informed the DMR previously and nothing was done with regards to our complaints, concerns
Regards
Alex Henderson
From: Mariette Liefferink [mailto:[email protected]] Sent: 20 October 2017 03:18 PM To: 'Mmadikeledi Malebe'
Dear Mr Sekgale (and respected co-recipients),
I refer to the above matter, the subjoined correspondence and our telephonic discussion this afternoon, for which I thank you sincerely.
I, on behalf of the Federation for a Sustainable Environment (FSE), hereby respectfully, albeit urgently request you to investigate the allegations of non-compliance by Protea Mines, within Magaliesburg area.
I furthermore request Messrs Khoza and Thobejane to include a discussion of the Protea Mines and its operations without an alleged water use license (WUL) during the Magaliesburg Catchment Forum meeting on Tuesday, the 24th of October, 2017 at Magaliesburg Civic Centre at 10am. I suggest that Mr Alex Henderson, on behalf of the complainants, participate in the discussion.
In anticipation, please accept my sincere thanks.
Best Regards Mariette Liefferink
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MCF Ref: C001 TAU Industries – Draft EAP and EMP reports // Magaliesburg Community Forum
CEO: FEDERATION FOR A SUSTAINABLE ENVIRONMENT TEL: (+27) 11 465 6910 (+27) 73 231 4893 Fax: 086 464 1509 Postnet Suite 87 Private Bag X033 RIVONIA 2128 E-MAIL: [email protected] (Please note: [email protected] is no longer functional)
From: Alex Henderson [mailto:] Sent: 20 October 2017 07:44 AM To: [email protected] Subject: Protea Mines, Magaliesburg
Good Morning
As a citizen of Magaliesburg I write this letter with great concern, with regards to the Protea Mines (owner Salven Chetty), The mine previously called Blaauwbank mine, was declared a historical museum and a tourist attraction in Magaliesburg.
Since the current owner bought this mine, the museum was closed down, He is currently busy with unlawful mining activities, it was bought under the attention of the Magaliesburg Community that on the 24th October 2017 a lawful march against Protea Mines, from the community, with the intention to give Mr. Chetty a memorandum of demands, addressing the appalling working conditions and treatment of employees/community.
It was also brought under the community's attention of Mr. Chetty non-compliance to the Department of Minerals, NEMA regulations and acts. Non of the following legislative documentation are in place:
Environmental Management Programme Report (EMPR) Environmental Impact Assessment (EIA) Approved Water Use License Environmental Management Programme (EMP) Environmental Impact Assessment Report (EIAR) Financial guarantee for rehabilitation and Proof of payment (compliance) Regulation Chapter 14 – Statistical Returns
Other serious non-compliance to DMR Legislation. Material processed - Report to Regional Principal Inspector “9.2(7) The employer must annually submit to the regional principal inspector of mines, on forms 21.9(2)(a); 21.9(2)(b); 21.9(2)(c) and 21.9(2)(d), respectively, prescribed in chapter 21, and within 30 days from the end of the relevant annual reporting period as indicated on each form, reports which contains quarterly information on the airborne pollutant, heat stress, cold stress and noise aspects of the system of occupational hygiene measurements, established and maintained in terms of regulation 9.2(2),” He is currently processing material brought in by trucks, form other area's, leading to contamination. Contamination from Plant – The area below the plant are getting contaminated and no prevention for contamination in place, contaminated water allowed to flow into river catchment area.
TAU Industries’ Prospecting Applications - via Joan Projects 118
MCF Ref: C001 TAU Industries – Draft EAP and EMP reports // Magaliesburg Community Forum
Mine residue dumps – dumps not constructed according to DMR guidelines, no permission from DMR. COP’s – Non-compliance to all codes of practice as per DMR legislation. Acid mine drainage regulation: By running the plant (using cyanide extraction) and not adhering to the regulation set by the regulating bodies, AMD carries a potential threat to the environment as a whole, it poses a particular threat to the water resources which will have severe consequences for the health and well-being of our community, as the mine is directly above a river, and the community utilize this water for daily use. As a very concerned community addressing this letter to you, hopefully you will be able to address the above concerns urgently, as we have informed the DMR previously and nothing was done with regards to our complaints, concerns
Regards
Alex Henderson
TAU Industries’ Prospecting Applications - via Joan Projects 119
MCF Ref: C001 TAU Industries – Draft EAP and EMP reports