Court allows Tronox to continue mining

2013-01-11 00:00

THE Durban high court dismissed with costs an urgent court interdict by the Mtunzini Conservancy to halt mineral sands miner Tronox from continuing with construction at the controversial Fairbreeze mining site, this week.

The conservancy brought the application to the high court to apply for an interdict to restrain Tronox (formally Exxaro KZN Sands) from developing the mining site until they had been granted approval for its development under the Kwazulu-Natal Planning and Development Act, previously named the Town Planning Ordinance of 1949 (TPO).

Tronox, however, maintained they had the required permission.

They stated the mining rights had been granted under the 1991 Minerals Act and that this trumped provincial legislation.

The company plans to mine mineral sands at an area known as Fairbreeze, south of Mtunzini, with the nearest mining site being 100 metres away from the coastal village.

Heard by Justice J. Vahed, he found favour with Tronox’s argument that the Minerals Act held sway over any local ordinances.

“The question as to whether [Tronox] required any authorisation in terms of the TPO when the mining commenced must be answered in the negative,” said Vahed.

However, he said he found it “unfortunate” that the Umlalazi Municipality failed to provide any affidavits in the matter even though it was a respondent in the court action.

“ … Given the importance of and the complexities involved in the matter I would have expected [Umlalazi] to have applied its mind to the matters in issue and concluded that the fitting and responsible approach … was to assist the court, through an affidavit. I would have thought having been cited as an interested party, that common sense and common courtesy dictated that it had a duty to do so,” said Vahed.

In his judgment, he said costs were awarded to Tronox so as not to “hinder the promotion of constitutional justice”. The conservancy argued that having to pay costs would be unfair as they existed on donations while they maintain Tronox has “deep pockets”.

Tronox said it would continue with early-phase construction of the Fairbreeze mine, but it is still waiting to obtain its water-use licence before ramping up to full-scale construction and mine operation.

“Once in operation, the Fairbreeze mine is expected to yield 190 000 metric tons of titanium dioxide ore and 60 000 metric tons of zircon over a 12-year period. The Fairbreeze mine will preserve more than 1 000 permanent and contractor positions and create an additional 1 000 indirect jobs during the construction phase of the project.

“About R530 million will be spent annually on services and products, with more than half spent with black economic empowerment (BEE) companies,” said Tronox.

Bruce Hopwood, speaking on behalf of the Mtunzini Conservancy, said that they were “obviously disappointed” with the judgment as well as having costs awarded against them.

“We will study the judgment and consider what our next step will be.

“We are disappointed that the costs have been awarded against us … At the heart of this issue is that Tronox should never have been allowed to commence any activity on the site without completing a full scoping report and environmental impact assessment [EIA] on the mining sites …” said Hopwood.

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