MRC, An Australian Mining Company, sues activists
MSR is the South African subsidiary of Mineral Resource Commodities (MRC), which has its principal and registered office in Australia with company shares listed on the Australian Securities Exchange (ASX). MSR has operated its Tormin mineral sands mine on the West Coast of South Africa since 2013 and since commencement of its operations, there have been multiple complaints about and resistance to their operations, including findings of non-compliance with mining and environmental laws by regulators.
MSR has also sparked controversy in relation to its application to mine at Xolobeni in the Eastern Cape, and there has been longstanding resistance to mining by communities in the area. The conflict there, and the shocking assassination of Bazooka Rhadebe for which no suspect has yet been arrested, has been the subject of intense media coverage and debate, both here and internationally. Recently, a High Court judgment clarified the rights of communal landowners to object to mining and exemplifies the struggle and controversy surrounding this mining company.
MRC’s Tormin mining operations have been widely criticised by local communities in the area, environmental defenders as well as the broader South African public for regularly flouting environmental laws and regulations, its damaging impact on the environment (such as the cliff collapses in 2015 & 2018, impact on fisheries and operating in a critical biodiversity area), reports of poor working conditions and low worker wages, and for MRC’s use of SLAPP suits to intimidate and silence environmental defenders.
MRC also owns many other mining projects around the world, some of which are also contentious:
- Allegations in relation to Gold Ridge Mine in the Solomon Islands which it previously owned through its subsidiary St Barbara. In response to the mine being declared a “disaster area” by the Solomon Islands Government St Barbara sold Gold Ridge Mine in 2015 to a local community led company for a very low price of A$100 . This meant that MRC were able to avoid any legal, rehabilitation and environmental liability for the mine. Just one year later the area experienced a major environmental disaster. Torrential rainfall triggered spillover of thousands of cubic meters of untreated, potentially dangerous water from the mine’s tailing dam. Solomon Islands’ Ministry of Health ordered citizens not to drink water from, fish and wash in nearby rivers for fear of possible chemical contamination of the local water systems. Although subsequent testing of the water has declared it safe, the potential environmental impact of the mine’s tailing dam and St Barbara/MRC’s legacy remain a huge concern for local communities and the Solomon Islands public.
- Allegations relating to Simberi Gold Project in Papua New Guinea which is also owned by MRC through its subsidiary St Barbara. Simberi currently uses deep see tailings to dispose of its mine waste. Scientific reports and studies increasingly show the threat which irresponsible and unsustainable mining practices such as deep see tailing poses to marine life and ecology.
About MRC CEO, Mark Caruso
Mark Caruso, is the CEO of mining company MRC. According to MRC’s website he has a “proven track history of project discovery, delivering and financing projects from exploration through construction into operation in developing and emerging countries on time and on budget”. He is also a director of Connexion Media and is described on their website as “a successful executive and entrepreneur with a strong, transferrable business acumen.” Caruso is also regarded as a controversial and ‘colourful’ character in the South African public eye.
Mark Caruso is widely known for spearheading MRC’s controversial attempt to establish a mine at Xolebeni. Following the assassination of prominent activist Sikhosiphi ‘Bazooka’ Rhadebe in March 2016 and allegations of MRC’s involvement, Mark Caruso told Australian Broadcasting Corporation that the company would not engage in any violence, and would “cooperate fully with any investigations into this incident”. But in 2015 a report of Caruso’s threatening emails emerged, in which he is reported to quote biblical scriptures when describing what he would do to anyone who opposed him. Caruso reportedly wrote in his email, “From time to time I have sought the Bible for understanding and perhaps I can direct you to Ezekiel 25:17… And I will strike down upon thee with great vengeance and furious anger, those who attempt to poison and destroy my brothers. And you will know my name is the Lord when I lay my vengeance upon thee.”
Mark Caruso has also been involved in more than his fair share of controversy internationally. In 2010 Papua New Guinean media reported that Mark Caruso had flown in 14 Fijians, which they described as ‘mercenaries’ to protect MSR’s mining operations at Simberi Gold Project and in 2014 The Weekend Australian carried a report stating that Caruso had been at the centre of an alleged corruption scandal in the Solomon Islands. According to the report, Mark Caruso had admitted to paying for a Solomon Islands politician’s children to attend a top boarding school in Australia.
Currently 6 defendants; Christine Reddell, Tracey Davies, Davine Cloete, Mzamo Dlamini, John Clarke and Cormac Cullinan are facing what is being widely regarded by civil society as SLAPP suit charges brought by MRC, under Mark Caruso’s leadership.
Mark Caruso and MRC have purported to not engage in any violence, illegal activities and that “the company acknowledges the right to freedom of speech”. But it is made clear both by Mark Caruso’s threatening emails and actions that he will employ a wide range of dirty tactics to ensure he protects his ‘brothers’ and ‘rains down vengeance’ on his enemies.
Documents relating to MSR’s Mining Operations
NEMA Section 24G Application to Rectify Unlawful Activities
- Environmental Management Programme – Application to rectify unawful activities at the Tormin Mine, West Coast – May 2018
- Environmental Authorisation granted for commencement of unlawful activities – 19 June 2019
- CER’s appeal of Environmental Authorisation and Annexure A and B (9 July 2019)
- MSR’s response to CER’s appeal
Section 102 Expansion Application
- 2004 heritage assessment – submitted with 102 amendment
- 2006 geotechnical assessment – submitted with 102 amendment
- 2014 ecological report – submitted with section 102 amendment
- Refusal of Environmental Authorsation – 22 November 2017
- Environmental Authorisation – Tormin Mine Expansion 19 June 2019
- CER’s Appeal of Environmental Authorisation – Extension Application for Tormin Mine
- MSR’s Response to CER’s Appeal
- MSR’s Response to Sowman’s Appeal
- Appeal Decision – 26 March 2020
SLAPP suits brought by MRC
MRC/MSR issued summons or filed SLAPP suits in four separate matters against:
- John Clarke;
- Mzamo Dlamini and Cormac Cullinan;
- Christine Reddell, Tracey Davies and Davine Cloete; and
- Tossie Beukes and Riaan Oberholzer.
The fourth matter involving Tossie and Riaan was withdrawn in early 2019.
In 2019, in the matter involving Tracey, Christine and Davine, the first of the matters to proceed, the Court disallowed access to documents which were sought for their defence. Subsequent to the Court’s finding, the defendants, in order to advance the matter expeditiously, chose not to appeal the matter, but to instead to file a special plea highlighting the vexatious nature of the proceedings. Defendants in the other two matters also filed substantially identical special pleas and MRC has taken exception to all three special pleas.
A joint virtual hearing to determine the issues raised in the exceptions was set down for 9 and 10 June 2020.
The Centre for Applied Legal Studies and the University of Cape Town were admitted as amicus curiae in this defamation suit and raised issues related to freedom of expression, including academic freedom.
Pleadings in the Application for Leave to Appeal (Supreme Court of Appeal and Constitutional Court)
CER challenges to MSR’s Tormin mine on the West Coast of South Africa
CER’s internal appeal against the section 102 decision (21 September 2020)
CER’s appeal in terms of section 96(1) of the MPRDA against the Minister of Mineral Resources decision to approve MSR’s application for amendment of its mining right – 21 September 2020
- CER’s section 96(1) MPRDA Appeal and combined Annexures (21 September 2020)
- MSR’s Answering Affidavit and Annexures (Annexure RA1 Annexure RA2 Annexure RA3
- Annexure RA4 (Part 1 of 2) Annexure RA4 (Part 2 of 2) Annexure RA5 Annexure RA6 Annexure RA7 (Part 1 of 2) Annexure RA7 (Part 2 of ) Annexure RA8 Annexure RA9 Annexure RA10) (30 October 2020)
- CER’s rectified appeal and annexures (30 September 2020)
- CER’s conditional application for condonation (30 September 2020)
- CER’s request to the DMRE Western Cape Regional Office for urgent delivery of the Minister’s record of decision in the appeal (30 November 2020)
- CER’s Replying Affidavit (11 December 2020)
CER’s application for suspension of the section 102 decision (21 September 2020)
- CER’s section 96(2) MPRDA application for suspension (21 September 2020)
- CER’s letter to the Minister of Mineral Resources and Director-General calling for urgent suspension of the decision to approve MSR’s section 102 amendment application (29 September 2020)
- MSR’s Reply to the Section 96(2) Application (14 October 2020)
Correspondence between CER, MSR and the DMRE regarding CER’s suspension application:
- CER’s letter to the DMRE regarding MSR’s Reply (16 October 2020)
- MSR’s replying letter to the DMRE (20 October 2020)
- CER’s further letter to the DMRE regarding its rectified appeal and suspension application (30 October 2020)
- CER’s rectified suspension application (30 September 2020)
- CER’s Response to MSR’s Reply and Annexures (ZO 1, ZO 2, ZO 3, ZO 4 – Expert Affidavit of Susan Brownlie, ZO 5 – Expert Affidavit of Nick Helme, ZO 6 – Expert Affidavit of Peter Carrick, ZO 7 – Expert Affidavit of Merle Sowman, ZO 8 – Confirmatory Affidavit of Robert dos Santos). (6 November 2020)
Correspondence between CER, MSR and the DMRE regarding CER’s response:
CER’s judicial review of the Minister of Environment decision to dismiss CER’s appeal against MSR’s Integrated Environmental Authorisation for its proposed expansion (23 September 2020)
Notice of MotionFounding Affidavit of Zahra Omar and Annexures
Fourth Respondent’s (MSR) Notice to Oppose (13 October 2020)
First Respondent’s (Minister of Environment’s) Notice to Oppose (29 October 2020)
Eighth Respondent’s (MEC, DEA&DP) Notice to Abide (29 October 2020)
Applicant’s Rule 16(4) Notice (28 October 2020)
First Respondent’s (Minister of Environment) Record of Decision (13 November 2020)
- Part 1
- Part 2
- Part 3
- Part 4
A recording of Day 1 of the virtual hearing on 9 June 2020 is available here:
A recording of Day 2 of the virtual hearing on 10 June 2020 is available here: