Johannesburg - The ongoing fight for mining rights between two companies has now ended at the doorstep of the minister of Minerals and Resources, who will need to decide.
This was after law firm ENSafrica requested that minister Gwede Mantashe should suspend the mining activities at the Malonjeni mine.
The law firm, which represents Omsobomvu Coal, said the land was unlawfully registered in the name of Transasia. The law firm has given Mantashe until next week Friday, January 6, to decide on the matter.
This comes after Omsobomvu Coal and Transasia entered into a Sale of Prospecting Agreement in 2012. Umsobomvu, which is owned by a local businessman, Hector Kunene, was to permit Transasia to take care of any applications pending in the Department of Mineral Resources (DMR) under section 11 (1) of the Mineral and Petroleum Resources Development Act of 2022 (MPRDA) or for the grant of mining, as agreed.
Kunene was obliged to submit the application, but after having received R14 million from Transasia, he failed to do so and created blockages for Transasia.
Transasia, which is owned by ANC stalwart Mathews Phosa and Russian businesswoman Luda Royblat, was entitled to the transferred mining rights for Malonjeni and Cambrian mining projects in Kwazulu-Natal, in which they invested with a 0% contribution for Kunene.
In December 2021, the department’s director-general, Pieter Alberts, granted Transasia mining rights. But the decision aggrieved Umsobomvu, who challenged the transfer in court. ENSafrica said Umsobomvu also appealed against the decision to the Department of Mineral Resources on January 20, 2022, and is still waiting for a response.
In a letter written on December 27, ENSafrica said: “It has been brought to our attention that mining has commenced on the land over which the Malonjeni mining right was granted to our clients and which was subsequently unlawfully registered in the name of Transasia 444 (Pty) Ltd.”
ENSafrica said the department was fully ceased with the matter. The law firm said Kunene was placed in an intolerable position considering that he delivered an appeal in respect of the “Impugned Decision” in January 2022 and has to date received neither a response nor a decision on the matter.
“The prejudice our client faces in light of the continued lack of decision-making or response from the office is clear and critical, particularly given the recent activities on the property associated with the Malonjeni mining right. We reiterate our concern that the minister’s decision in terms of section 96(2) has been outstanding for a prolonged period which has only facilitated Transasia’s unlawful conduct and continues to frustrate our client’s rights,” said ENSafrica.
The attorneys continued: “Section 96(2) is intended to be a mechanism in terms of which status quo is preserved pending the finalisation of the internal appeal and ought to be given effect to, especially in the circumstances where the appellant enjoys strong prospects of success on the appeal as is the case in the present instance.”
The law firm said in terms of section 96(2) the decision should be suspended pending the ruling on the appeal. The attorneys said Omsobomvu was anxious to protect its right in the Malonjeni mining, saying the right worth millions of rands.
“Omsobomvu has, throughout, made every attempt to protect its interests in the Malonjeni mining rights. In response to its first application, the minister assured Umsombomvu, on oath, that Trasasia’s application could not be entertained, given the obvious disputes. Then followed a change of heart, the director-general (Alberts) now appears to have relied on the contents of the Power of Attorney and the existence of the Sale Agreement in reaching his impugned decision,” said the lawyers.
However, according to Royblat, this is an abuse to hijack her business. She said ENSafrica and Kunene were willing to do everything to take her business, adding that this also shows the law firm has again encouraged Kunene to take pictures using drones while they were not aware. She said this was also proven when ENSafrica encouraged Kunene to obtain Transasia’s confidential documents in their application to appeal the mining rights license.
The information included trading records, financial statements, and scientific and technical reports. The cases are still before the high courts in Gauteng and Kwazulu-Natal.
“We place on record that the demand placed on the Minister is an abuse of the process. It is a transparent attempt at creating conditions for an urgent application to stop Transasia from continuing its mining operations. It is a matter of common cause that Transasia is the lawful owner of the license. As it is entitled in terms of its license conditions, Transasia has worked expeditiously as possible to commence its mining operations. In this regard, it has invested several millions of rands and created much-needed jobs for the South African economy,” said Roytblat.
She added: “We also wish to bring the attention to the minister that Umsobomvu has brought an application to compel the department to release the record of its decision. That application is going to be heard in court on January 20, 2023. It is therefore improper and premature for Umsobomvu to ask for a decision while litigation is pending on the issue of the record.”