From the Amadiba Archives
One Just Man Standing
Sinegugu Zukulu in perspective.
Sinegugu Zukulu was the lead applicant for Sustaining the Wild Coast (SWC) and others, to seek a High Court interdict to order Shell to stop their seismic exploration for oil and gas deposits off the South African Wild Coast.
Ahead of the court hearing Minister of Minerals and Energy Gwede Mantashe outraged those who cherish the Wild Coast when he suggested that objections to the seismic survey was “apartheid and colonialism of a special type, masquerading as a great interest in environmental protection”.
In granting Zukulu’s application today (27 December 2021) Judge Gerald Bloem of the Makanda High Court was not persuaded by Shell’s advocate Mr A Friedman who had argued that the applicants could have first applied to Minister Mantashe to cancel or suspend the exploration right. Instead the judge agreed with Zukulu’s counsel Advocate Thembeka Ngcukaitobi SC’s argument that the Minister had already “nailed his colours to Shell’s mast”. Citing Mantashe’s tweet Judge Bloem said “It appears that the Minister had made up his mind, and the procedure to which Shell refers, would quite frankly, have been a waste of time”.
Sustaining the Wild Coast quotes Zukulu’s response to the interdict.
“The voices of the voiceless have been heard. The voices of the directly affected people have at last been heard, and the constitutional rights of indigenous people have been upheld”
“This case reminds us that constitutional rights belong to the people and not to government, and that the only way that we can assure that the rights of indigenous people are living — and not just written on paper — is if we challenge government decisions that disregard these rights. This victory is hugely significant because we have made sure that the rights of indigenous communities are kept alive.”
While Minister Mantashe and Shell consider their options in the wake of this costly loss for them, this article from the Amadiba archives is republished in the hope that they will pay closer attention to whatever Sinegugu Zukulu has to say.
He has had a long history of trying to educate politicians.
He was also the lead applicant, supported by SWC in the long running campaign to try and compel the South African National Roads Agency (Sanral) to re-route their new N2 Wild Coast Toll away from the Xolobeni Mineral Sands that an Australian mining company still hopes to mine for titanium and heavy mineral deposits.
Although he ultimately lost that application, for those following the ongoing epic they know that the saga is far from over.
Another interdict application has just been served on Sanral and the Minister of Environment to halt further work on the greenfields section of the N2 shortcut that will bisect the Amadida Traditional Community in two. That case argues that Sanral have failed to do a Resettlement Action Plan, as required by their environmental authorisation and will shred the social fabric that gives their resilience in the face of all the hardships they have had to endure. More about that when court proceedings commence.
Meanwhile, this abridged and edited article serves to explain who Sinegugu Zukulu is when he is at home.
It was published four years ago by the Rand Daily Mail.
13 OCTOBER 2017–14:05
“Search the crop fields, river gorges and beaches of the Amadiba Wild Coast and you will find several just men and woman seeking the truth”
For someone who has written a book titled The Promise of Justice, (published in 2014) yesterday was a wonderful day to spend in the North Gauteng High Court.
I was there be the eyes and ears of Sinegugu Zukulu, with whom I have been working for over a decade to support the Amadiba coastal community in their struggle to save his ancestral lands from unjust developments; viz the mining of the coastal dunes of the Pondoland Wild Coast, and plans by SANRAL to re-route the N2 along a new greenfields section that will pass though his maizefields and grazing land, and destroy wetlands that he cherishes.
The Xolobeni Mining Rights battle has all but been won: the Australian mining company has disinvested (or so they say), and Minister Zwane has declared an 18 month moratorium on mining activity, (which is hardly reassuring. We had argued that he should have extended that to 600 months — fifty years, in keeping with the biblical teaching on the Jubilee, which was to promote restorative justice, cancellation of debts, healing and reconciliation).
(Note: A year later, in November 2018, Judge Annali Basson of the North Gauteng High Court ruled in response to an application by the Amadiba community that no mining right can be awarded over communally owned land without the Free Prior and Informed Consent of the directly affected residents. Judge Basson explains her ruling in this interview with the Judicial Services Commission. Minister Mantashe said he intends to appeal that ruling, but has not done so yet).
The legal battle against Sanral’s shortcut has been going on for twenty years. The first salvo’s were fired in 2002, with significant successes along the way. (The Sustaining the Wild Coast website provides chapter, verse and commentary). Sinegugu Zukulu is an esteemed member of the Baleni community with close kinship ties to the Chief, Lunga Baleni. Zukulu is an environmentalist of the deep ecology variety, and at the same time deeply steeped in Mpondo customary law and traditions. He is the first applicant and his founding affidavit deserves republication as a text book for law students and anthropologists studying the customary law and traditional governance systems of the amaMpondo. Zukulu’s lifetime experience of Mpondo traditional knowledge systems, explain why the Amadiba don’t want mining and mega motorways to foul their ancestral lands — especially not in the name of development.
From past experience of delays and procrastination tactics, Zukulu chose not to come to Pretoria to listen to the court proceedings, and re-experience the exasperation of the arcane protocols of court procedure. He sent me instead to listen to his counsel Advocate Geoff Budlender SC disposing of the interlocutory application brought by SANRAL which claimed that he lacked locus standi, because he had not been listed by name in the original objections, and therefore could not be said to have personally exhausted alternative, non adversarial remedies to have his personal objections addressed and therefore should not be allowed to proceed with his application for Judicial Review.
So, at great expense, for the second time the North Gauteng High Court convened to dissect legal argument that were abstruse, abstract and plainly annoying from the perspective of those who live in the real world of rural Mpondoland.
The Honourable Judge NB Tuchten was presiding.
It was clear from the outset that he was in no mood for tedious technicalities, and had read the heads of arguments.
His inquisitorial approach made the court case so much more interesting to the gallery.
He deprived Advocate Budlender of the opportunity of making his case himself: “I have read your papers, and in the interest of time, can I just summarise what I understand your case to be?”
His summation left me with the impression that he had already drafted his judgement …in our favour. Adv Budlender was more than satisfied that the Judge had more than got it.
The inquisitorial approach was not pleasant for Counsel for the applicant, Adv Loxton appearing for SANRAL. He had to try and make his case himself. The judge provided no assistance. On the contrary..
Loxton. “Zukulu cannot hide behind the community…”
Judge. “Emotive words Mr Loxton..”
Loxton. “Well.. cannot associate with the community..”
Judge: “My point exactly.”
The point was that, far from Zukulu ‘hiding behind’ the community, the Chief of the community had withdrawn from the case, without a council resolution or consultation with the community. The Chief had abandoned Zukulu, thinking he had taken the community with him.
A corrupted chief cannot dissociate a community from a just cause.
SANRAL’s lawyers had thought it was clever to isolate Zukulu from his Chief. Judge Tuchen seemed to me to have seen through the legal charade. He was having none of it.
“One just man left standing is enough for me” said Judge Tuchten, echoing Jeremiah 5:1 “Rove to and fro the streets of Jerusalem, look, now, and learn, search her squares; if you can find a man, one man who does right and seeks the truth, then I will pardon her, says the Lord”.
Search the crop fields, river gorges and beaches of the Amadiba Wild Coast and you will find several just men and woman seeking the truth, all inspired by Zukulu’s courage to stand alone when the circumstances required, despite threats and intimidation, cooption and subversion. That is what The Promise of Justice is all about.
The case had been set down for two days. During the lunch break Geoff opined that it would be over by 2.30 pm.
The second consolation of the Promise of Justice was the news from my longstanding friend Dr Marjorie Jobson, of Khulumani Support Group, whom I happened to bump into in the cafeteria. She was sitting quietly by herself having just come from listening to Judge Billy Mothle in another court room, who had ruled that Ahmed Timol did not commit suicide but died after being tortured and pushed from a window by security branch police officers.
“For 37 years the family has waited for the promise of justice John”, Marj said.
“Now we can reopen the Steve Biko case and many others”.
Will the judgement open the floodgates for other unexplained deaths to be prosecuted?
Yes, if the conclusion to “Stand Alone Zukulu” vs “Silly Sanral” has anything to say.
Back in court with Judge Tuchen, Geoff Budlender was wrong in one detail. The court adjourned at 2.32. He was two minutes longer in his summing up than he had predicted.
Advocate Loxton had tried “the floodgates will open…” argument to try to persuade Judge Tuchen not to risk allowing Zukulu to proceed.
Judge Tuchen wryly observed “I have heard that argument often and the Counsel always have quotes some or other legal authority, but I have never seen it ever happen”.
Budlender agreed, making up for the deprivation of his oratorial skills by the judge at the start with a flourising finish.
“Finally, if I may agree with you, my Lord, and refer you to Judge Nafta in the Supreme Court of Appeal (Democratic Alliance vs NDPP and Jacob Zuma March 2012)…
“One of the principal objections often raised against the adoption of a more flexible approach to the problem of locus standi is that the floodgates will thereby be opened, giving rise to an uncontrollable torrent of litigation. It is well, however, to bear in mind a remark made by Mr Justice Kirby, President of the New South Wales Court of Appeal, in the course of an address at the Tenth Anniversary Conference of the Legal Resources Centre, namely that it may sometimes be necessary to open the floodgates in order to irrigate the arid ground below them. I am not persuaded by the argument that to afford locus standi to a body such as first applicant in circumstances such as these would be to open the floodgates to a torrent of frivolous or vexatious litigation against the State by cranks or busybodies. Neither am I persuaded, given the exorbitant costs of Supreme Court litigation, that should the law be so adapted cranks and busybodies would indeed flood the courts with vexatious or frivolous applications against the State. Should they be tempted to do so, I have no doubt that appropriate order of costs would soon inhibit their litigious ardour.’”
If he was not also a humble, modest (and punctual) man, Advocate Geoff Budlender SC would have used another minute to continue with the citation from Judge Navsa, in which he had added.
“Thirdly, as was pointed out by Budlender, ‘if the cases are well-founded, there can be no objection to a flood of people trying to achieve justice’”.
I left the court with a quiet sense that the ancestors of the AmaMpondo, now including King Justice Mpondombini Sigcau, whose story is told in my book The Promise of Justice, were smiling down on us.
The book commences with this quote.
“Let Judgement run down as waters, and righteousness as a mighty stream.” Amos 5:24
