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Thursday Jan 10, 2013

Mining giant trumps Mtunzini residents

Mtunzini residents were dealt a severe blow in their battle against a multinational mining giant when their application was dismissed by a Durban High Court judge this week.

Members of the Mtunzini Conservancy went to court in October to get an urgent interdict to prevent Tronox KZN Sands from mining heavy minerals next to the town until the company received formal planning permission from the Umlalazi local municipality.

The conservancy and residents, who supported the court action, have said that large parts of the Zululand region are under increasing pressure from mining groups.

At sea, prospecting companies were searching for minerals and oil, while on land several mining companies were planning expansions to opencast mines.

On Tuesday, Durban High Court Judge Rashid Vahed ruled against the interdict and ordered that the conservancy pay the hefty costs of the application.

In court papers, advocate Richard Salmon, for the conservancy, had argued that Tronox was acting illegally by trying to mine sand dunes in the vicinity of Mtunzini without municipal consent. This would set a "dangerous precedent", Salmon told the court.

Tronox, however, argued that it did not need permission from the municipality because it had been given mining rights by the national government at a time when no permission was needed at the municipal level and had already started mining on all the sites except one.

Advocate Peter Olsen, for Tronox, said that if Judge Vahed was to accept the legal arguments by the conservancy, then it was possible that several other mines in KwaZuluNatal could also be considered to be acting illegally and therefore "liable to be shut down".

Judge Vahed found that the mining company was not acting illegally as it had obtained mining authorisation from the national government in 1998 and had started mining.

He said that, because of this, it did not require planning permission from the municipality because the planning legislation had only come into effect in 2009.

Judge Vahed also criticised the Umlalazi municipality for not filing affidavits with the court. It would have been "common sense and common courtesy" for it to do this. "I would have expected the second respondent (Umlalazi) to have applied its mind to the matters in issue and concluded that the fitting and responsible approach was to assist the court."

Regarding the costs of the case, Judge Vahed said he was ignoring that Tronox might have "deep pockets" because the conservancy had dashed to court without first trying to discuss the matter.

"There is no indication in the papers of any attempt to engage the first respondent's attorneys in discussion... Had the enquiry and engagement process been rebuffed, my attitude to costs might well have been different," the judge said.

The Mercury

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