MINING, LAND, AND COMMUNITY IN COMMUNAL AREAS III: COMMUNITY GOVERNANCE

In my introductory brief, I provided an overview of how issues relating to mineral and land rights and community governance undermine individuals and communities in interactions with mining companies. I argue that future hardship can be prevented by keeping the basic principle that mining must benefit South Africans while changing the structure and, most importantly, the application of some of the law.

In my second brief, I dealt with competing mineral rights and land rights. In this final brief, I delve more deeply into the issue of community governance.

Introduction

The continuance in rural South Africa of “traditional communities” governed in part by traditional governance structures and customary law is protected by Chapter 12 of the Constitution and, to some extent, guarantees of cultural rights in the Bill of Rights. It is supported by national and provincial legislation, including the Traditional Leadership and Governance Framework Act and, for example, the Limpopo Traditional Leadership and Institutions Act. Traditional governance structures are also subject to customary law.[1]

Engaging with these communities properly requires companies to do extra work understanding particular governance structures and versions of customary law, which may be very unfamiliar to common-law trained company lawyers.

Two broad issues arise as a result: 1) when mining companies do not make the time and effort to understand traditional governance structures and customary law, they risk creating or exacerbating violent divisions within communities; 2) without adherence to a robust and nuanced conception of democratic imperatives within customary law, traditional governance and communal landholding structures can be abused at the expense of individual rights, freedoms, and wellbeing.

It is possible to have legitimate sympathy for companies that want to make a positive impact in an area but become caught in the middle of divisive community politics. That said, there are few positive stories out of communities affected by mining in South Africa, and many companies that seem to be locked into a mindset of legalistic compliance rather than careful attention to real and lasting benefits.[2]  It is important that they do their part to ensure that they understand the law, power structures, and people with which and with whom they are engaging.

Taking the Time to Understand a Specific Context

The current situation in Mapela in Limpopo province is an excellent example of community division and violence being exacerbated by a company that did not properly understand the customary law and governance of a community. The Mapela situation also seems to show a failure to properly account for differences of population size and different political dynamics in dealing with different communities. 

In April, addressing violent protests the previous September, Anglo American Platinum (“Amplats”) subsidiary, Rustenburg Platinum, announced a R1.75 million deal to “settle all outstanding issues” between the mine and the Mapela community and to “settle a number of legacy issues” other than land leases.[3]

Unfortunately, the company dealt exclusively with Kgoshi David Langa and his traditional council. This caused more violent protests and exacerbated ongoing tensions. Many residents in Mapela, including headmen, were upset that not only had they not been consulted about the settlement deal, Kgoshi Langa withheld information from the community about the details of the settlement. He signed the deal even after community members came forward asking him not to sign until the community had been properly consulted.^[4]

Kgoshi Langa insists that customary law obligates him to consult only with his traditional council. Amplats appears to have adopted that same position: that consultation with the community simply means consultation with its traditional council.^[5]

As I describe below, this is almost certainly an incorrect and superficial understanding of customary law in Mapela. The situation is further complicated by the fact that Mapela’s traditional council appears to be improperly constituted such that is has no official status or legal standing in terms of statute. Limpopo has failed to hold elections for 40% of Traditional Council members. Section 3(2)(c)(ii) of the Traditional Leadership and Governance Framework Act and section 4(5) of the Limpopo Traditional Leadership and Institutions Act require these elections.^[6]

It is also complicated by the fact that Kgoshi Langa has interests in businesses providing services to the mine.[7] This conflict of interest should have made Amplats extra cautious about transparency and accountability in negotiations for the settlement. The possible conflict also makes it particularly problematic that the settlement creates a trust structure to manage community assets, including the R1.75 million, that makes Kgoshi Langa the chairperson of the trust and gives him significant control over most other trustee appointments.[8]

Amplats compared the structure that they had set up to the Royal Bafokeng Nation Development Trust, which it lauds as a success story.[9] The Bafokeng is a questionable success. Funds from mining allowed the community to improve electrification and school systems.^[10] The area received positive attention during the 2010 World Cup when its soccer stadium served as home base for the British team

However, community members increasingly express anger and frustration that their Kgoshi owns three private jets, allegedly bought using tribal funds, while they still lack effective sewage systems.^[11] There are also disputes in the Bafokeng about land ownership. The Kgoshi continues to alienate communal land subject to various land claims without community consent. He started court proceedings to register land title under the overall Royal Bafokeng Nation Tribe without adequate community consultation.^[12] This action has been disputed in court by the Bafokeng Private Land Buyers Association, Thekwana Community, and others.^[13]

Regardless, Bafokeng is not a good comparison for Mapela: the Royal Bafokeng Nation Development Trust started with an asset base of approximately R8.8 billion. Although the Royal Bafokeng Nation outnumbers Mapela by a ratio of 3:1, the asset base of the Royal Bafokeng Nation is about 51 times larger than the R1.75 million settlement with Mapela.^[14] The greater asset base allows for a greater trickle-down of funds despite alleged problems with mismanagement.

The situation in Xolobeni on the Wild Coast also evinces a disturbing lack of depth of research and effective community engagement on the part of mining companies. Despite obvious divisions within the area and widespread violence and intimidation by various factions, mining companies have insisted that they themselves are doing nothing wrong and fulfilling their obligation to consult. Any consultation appears to be heavily focused on aggressively pro-mining factions. That situation has been complicated by litigation about who is the legitimate traditional leader in the area.^[15]

The need to engage with distinct communities within countries that are governed by versions of customary law is not unique to South Africa. Amplats, for example, has had more positive interactions with Canadian Aboriginal communities. That experience, however, cannot be directly applied to South African communities. Important cultural, practical, and legal differences exist between the two contexts. Indeed, as described above, it is problematic to simplistically apply experiences across communities even within one country.

Mapela is a much larger community than the Canadian Aboriginal communities with which Anglo engage at its Peace River Coal operation in British Columbia: 100 000 people as opposed to 2200.[16]

Moreover, despite disputes within some of these communities about governance and resource use, they are structured differently from Mapela. They have a democratic tradition, dating to at least 1870, that is structured in a way more readily understandable to outsiders (admittedly, this is partly a legacy of colonialism and Canada’s controversial Indian Act[17]). This, combined with the small size of these communities, makes it easier for companies like Amplats to ensure that they have appropriate community support when negotiating settlements. Canadian First Nations chiefs and councils are usually democratically elected, with clearly written rules and policies about elections. The particular communities in question also make use of modern technology to enhance election-processes and vote-taking.[18]

Customary Law that Empowers Communities

South Africa is still struggling with how to reconcile autocratic, usually very patriarchal, structures in traditional communities with its commitment to individual rights and true democracy. In its growing jurisprudence about the nature and content of customary law, the Constitutional Court emphasizes the need for a “living customary law” capable of change and adaptation. The Court insists that this is what customary law was before colonialism and apartheid distorted it, making it more autocratic. The Court also insists that, properly understood, this is what still exists on the ground. Judgements like Alexkor[19], Shilubana[20], Gumede[21], and, especially, Pilane[22] provide examples of this reasoning.

The Land and Accountability Research Centre (formerly the Rural Women’s Action Research Programme) has pointed out that the content of customary law determines the scope of chiefly power, procedural rights for ordinary people, as well as certain substantive rights. This is because Section 39(3) of the Bill of Rights recognizes customary rights to the extent that they are consistent with the Bill of Rights. The Constitution requires that courts apply customary law where applicable (section 221(3)), and, subject to the Constitution, recognizes traditional leadership institutions “according to customary law”.[23]

Academic specialists in customary law emphasize that procedural protections that have a long history as part of customary law are more important than ever in light of increased statutory support for traditional leaders and decreased availability of land. Both of these factors make it more difficult for community members to move elsewhere, as they did in the past, and find new leadership if they do not approve of a leader’s conduct. These specialists provide evidence that consensus-based democracy has existed for a long time in many South African traditional communities.[24]

Professor Peter Delius builds on work by H. Jackson and H. O. Mönnigs to describe a process of community consultation in decision making in Sotho-Tswana communities, such as Mapela and the Bafokeng. It involves participation by various councils of elders and headmen or headwomen as well as the entire community in meetings called pitso.[25] This scholarly evidence accords with interviews with Mapela community members as to the customary law practiced in Mapela today.

The democratic tradition described by Delius and Mapela community members is different from most state democracies in that it emphasizes broad consensus over majority vote. That is another nuance, beyond the important realization that traditional governance does not mean simple autocracy, to which anyone engaged in community consultation must be sensitive.

Despite strong support for this democratic interpretation of customary law by courts, researchers, and community members, it is still disputed. Lower courts also often fail to apply the Constitutional Court rulings about living customary law. Judge Landman’s recent finding in Bafokeng Private Land Buyers Association and Others v Royal Bafokeng Nation and Others that, “[t]raditional law and custom has not yet reached a stage where exercise of the Kgosi’s [sic] prerogative may be challenged in a court of law” is an important reminder of this. Judge Landman rejected the idea that a Kgoshi must consult with the community about a decision to approach the High Court for an order that land be registered under the name of the Royal Bafokeng Nation.[26] In 2004, the Communal Lands Right Act sought to give traditional councils power to represent rural communities as the “owner of the land”, but the Constitutional Court declared it unconstitutional in 2010.[27]

Conclusion to the Series of Briefs  

In this series of briefs, I have sought to draw attention to problems in South Africa’s current legal framework around mining that force some citizens, in most cases historically disadvantaged citizens, to bear a disproportionately large burden for the benefits created by mineral extraction. Contrary to its aims, the current framework falls short of benefiting all South Africans and addressing historical inequalities in the pre-1994 mineral law framework.

As I have described, it is important to protect the rights and dignity of South Africans, particularly those living in traditional communities, by addressing 1) problematic discrepancies in the negotiating position of surface rights holders and mineral rights holders; and 2) governance issues and proper, nuanced understandings of customary law in traditional communities. It is also in the self-interest of the mining industry to ensure that these problems are addressed. Conflict created when surface rights holders are not respected hurts mining projects as well as communities. Indeed, this July, Mineral Rights Commodities Ltd. abandoned its rights in Xolobeni because of the community conflict that it exacerbated.[28]