Johannesburg - An attempt to have mining activities suspended has landed law firm ENSafrica in more trouble.
ANC stalwart and businessman Mathews Phosa has opened a criminal case against ENSafrica and its client Umsobomvu Coal for committing “corporate espionage”.
This was after ENSafrica asked Minister of Mineral Resources and Energy Gwede Mantashe to suspend the mining activities at the Malonjeni project.
The law firm in its request indicated that the mine was previously owned by Umsobomvu Coal and was unlawfully registered in the name of Transasia.
The law firm provided the Department of Mineral Resources and Energy (DMRE) with pictures of the mining operations saying it had been brought to their attention that mining had commenced while the matter was still before the court.
This was after Umsobomvu appealed the Department’s decision to grant Transasia the mining rights in December 2021, after the two mining companies entered into a Sale of Prospecting Agreement in 2012.
In his affidavit, Phosa said the mere fact that ENSafrica and Umsobomvu had further committed “corporate espionage or industrial espionage” for the mere fact that they trespassed on his premises illegally and unlawfully obtained the company’s information.
He said this was proof that ENSafrica and Umsobomvu had unknown motives for his company.
“After they spied on us, what other criminal motives they intend to commit is unknown to me. We do not want any third party to know our personal information and the location of the mining area.
“The next move will be for them either to come and kill the people on the premises or ignite the fire to burn my property. They already used the information they obtained illegally to say my company is mining illegally. While knowing we are the rightful owners and in possession of the licence,” Phosa said.
He said this showed that they intended to stop him, and his business partner, Luda Roytblat from mining at their “lawful place” and take all their wealth for themselves.
He said this was worrisome as he did not know if there was more private information that was also shared along with the pictures.
“I don’t know who obtained those aerial photographs and neither do I know who else my private and confidential information was shared by ENSafrica and Hector Kunene, who owns Umsobomvu. As a result, I feel very much intimidated by the unlawful actions of ENSafrica and Kunene,” Phosa said.
He said both (ENSafrica and Kunene) knew that Kunene was not the lawful owner of Malonjeni and thus neither entitled and authorised nor permitted to enter the premises, whose mining rights were owned by Transasia.
He said they knew that it was illegal to collect other person's data without authorisation or consent from such persons. “Any area included in the licence, they are forbidden to enter or commit any unlawful act. The said photographs were marked ‘B’ and indeed they depict my premises. It became very clear and obvious to me that the aerial photographs in question were taken recently.”
The case has been opened in Dundee Police Station, KwaZulu-Natal (KZN).
This is not the first time ENSafrica and Kunene have been accused of trespassing and obtaining Malonjeni's information illegally.
Last year, ENSafrica was accused of encouraging Kunene to take pictures using drones on the premises without the consent of Phosa and Royblat. This led to the arrest of Kunene who was released on bail.
The law firm was also accused of encouraging Kunene to obtain Transasia’s confidential documents in their application to appeal the mining rights licence. The information included trading records, financial statements, and scientific and technical reports. These cases are still before the high courts in Gauteng and KZN.
Phosa said the company lost more than R50 million as a result of these unlawful actions.
“Neither ENSafrica nor Kunene have the right to enter my premises and steal my private technical and financial information and other trade assets and information. They had no right to have such information in their possession. They obtained the same illegally. They do not have the right to have this information. I did not give them permission to possess them.
“I’m prejudiced by their actions and I have already lost millions of rand in what I already invested plus the future losses which will be over R50 million per day,” Phosa said.
Meanwhile, Royblat's attorneys, Hammond-Smith, told the DMRE that Umsobomvu wanted to steal their client's investment after it had been developed. The attorneys said the Department should not allow Umsobomvu to make use of the state as a conduit for essentially unlawfully dispossessing their client of its investment.
“The decision to grant our client was taken by the state on the advice of an independent senior counsel and accordingly, the state acted lawfully and correctly.
“We further must bring to the honourable Minister’s attention that a criminal case against Mr Kunene is currently pending for theft and fraud for this particular matter and he is currently out on bail.
“However, of importance is that the prosecution has brought an application to revoke Mr Kunene’s bail due to the fact that he unlawfully commissioned a drone to enter the space in which our client conducts its operations to gain access to our client’s confidential information and trade secrets,” the lawyers said.
After the two mine companies entered into a Sale of Prospecting Agreement in 2012, Umsobomvu was to permit Transasia to take carriage of any applications pending in the DMRE 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 has been creating blockages for Transisia.
Transasia was entitled to the transferred mining rights for Malonjeni and Cambrian mining projects in KZN, in which they invested with a 0% contribution for Kunene.