MINING, LAND, AND COMMUNITY IN COMMUNAL AREAS IV: IN THE FIELD

In a series of three briefs, 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 argued 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 this supplementary brief to that series, I describe my visit to one of the communities that I wrote about and what I heard and saw.

Introduction

One of Helen Suzman’s strengths as a politician was that she believed in going to see for herself what was happening in different parts of the country, in speaking to the people affected, and in letting that inform her opinions. In that tradition, I was very grateful to have an opportunity to visit Mapela (a region of villages near Mokopane in Limpopo) with lawyers from Richard Spoor Inc. and lawyers and researchers from LARC (the Land and Accountability Research Centre out of the University of Cape Town). I wanted to see and to hear about for myself the issues that I covered in my series of briefs on mining and land issues.

I spent four days in Mapela traveling to a series of meetings held by committees from several different villages affected by Anlgo American’s Mogalakwena Platinum Mine and the Platreef Resources Ivanplats Mine. I helped to keep minutes and to conduct interviews at the meetings. I heard many stories in Mapela, but one struck me in particular as in some ways tragic and troubling and in some ways very inspiring. I will provide a broad overview of what I learned followed by a more detailed description of the situation in Mothlothlo, a community of brave and stubborn holdouts now living literally meters away from the edge of the Mogalakwena mine.

This part of Limpopo is beautiful desert land. Somewhat harsh and barren, the landscape is dusty, broken by sparse vegetation and exotic (to me) desert plants.  Away from the haze that hovers around Joburg, you can see far, far into the distance, and the horizon is broken by big hills or small mountains. To me, the mines have a strange beauty of their own, highly manufactured behemoths unfolding in the middle of the landscape. The situation into which these mines have put the people living in Mapela, however, is very ugly. It is a result of the issues that I described in my series of briefs, and it demands more caution, awareness, and sensitivity from mining companies and from other organizations and institutions responsible for ensuring that mining happens responsibly.

Overview of The Situation in Mapela

The Mogalakwena Platinum Mine in Mapela, owned by Anglo American Platinum (Amplats), began operations in the early 90s. A root of many of the problems that still exist in 2016 is that Amplats made deals about land leases, compensation, and relocation with the Kgoshi, at that time the mother of the current Kgoshi, without consulting properly with other community members or even many of the relevant councils of headmen. It also sounds, from speaking to people, like the mine did not even give them adequate notice, insisting instead, that is was adequate to notify and deal with the Kgoshi. In one community, I was told that despite repeated attempts to get a copy of a trust deed for a community benefit trust, a public document, community members were repeatedly directed to an information sheet prepared by Amplats instead.

I have already explained the legal issues surrounding this conduct, but, on a practical level, it created long-standing distrust of the Kgoshi and some confusion about and much frustration with the deals made with the mine. It completely undermined the legitimacy of the deals in the eyes of many community members. It also meant that the effects of the mine on people who were not able to participate in the negotiating process and to explain how the mine would affect them were disregarded. Deals made have been woefully inadequate at addressing their situations.

Our first meeting in Mapela was with councils of village headmen, effectively the “royal family” in the community for the purposes of the Traditional Leadership and Governance Framework Act, angry that a new settlement agreement between Kgoshi David Langa and Amplats had been negotiated and signed without consulting them. Concerns include that the Kgoshi has a potential conflict of interest because of business ties with the mine and that he has too much control over appointments in the trust being set up to manage compensation money.

When two of my colleagues from Richard Spoor Inc. returned the next day with our advocate to conduct more in-depth interviews, they were locked out of the Mapela Tribal Council offices. It appeared that word had gotten around that headmen had been meeting with lawyers, and the Kgoshi and his supporters were not happy about it. It was easy to relocate to another place to conduct interviews, but symbolically, being locked out of the Tribal Council offices deeply angered the headman meeting with us.

Several other meetings revolved around similar issues: 1) trying to ensure that trusts set up to control money given to the community by the mine were controlled by the community, not only by the Kgoshi and his supporters; 2) concern about the adequacy of compensation, including the poor quality of some of the non-monetary compensation provided, such as housing for relocation; 3) concern about lack of consultation;  4) the stresses of replacing agricultural land gradually being covered by the mines; and 5) concern about the health impacts of living close to a mine.

The Brave and Stubborn Community at Mothlothlo

The community still at Mothlothlo lives, quite literally, meters away from a big tailing dump of the Mogalakwena Platinum Mine. Part of the community was relocated in the early 2000s, but the group still at Mothlothlo was unhappy with the quality of housing provided for the relocation. They inspected the housing and felt that it was made with inferior building materials and prone to water damage. About 153 households of 8-12 people each are left at Mothlothlo.  

According to Lucas, one of the community members who we interviewed, the mine representatives insisted that the community members negotiate through a lawyer named Seth Nthai. Nthai was disbarred in 2013 for accepting a bribe to let the other side win while representing the South African Government. Disturbingly, we heard some reports that he had been helping with negotiations in the area “in his personal capacity” as recently as last year. Dissatisfied by attempts to force representation on them, the community wanted a lawyer of their own choosing, found Richard Spoor’s name in a newspaper, and contacted him. After some pushback from the mine to the community’s insistence on being represented by Spoor, a mining executive named Ben Magara convinced Amplats that the community had a right to choose its own lawyer.

In 2012, Spoor was able to negotiate a better deal for the holdouts at Mothlothlo, and the mine bought them farmland of their choosing in another municipality. Sadly, although their CPA now has the title deed to the land, the residents of Mothlothlo still have not been able to move because white farmers neighbouring the land, funded by AfriForum, have objected to them moving there. The municipality must hold a hearing to resolve the issue before the CPA can start building, but the community has been waiting for a hearing since 2014. When an attorney from Richard Spoor Inc. and I tried to give notice under the Regulation of Gatherings Act for a community march to petition the mayor to set a hearing date, we were told that there is a blanket ban on community protests before the municipal elections, a stance which is clearly unlawful.

Meanwhile, the open-pit mine has expanded across the community’s agricultural land, and they have not been able to support themselves by farming for three years. According to Lucas, the community tried to protest the expansion by going out to their fields with their children, but each time were arrested and detained, and the mine continued to expand while they were in detention.

Moreover, promised jobs have not materialized on an adequate scale. The mine has been providing this community with only about fifteen jobs. Community members told us that they are allowed to work at these jobs for six months before the mine insists on completely changing over who has the jobs. One community member with whom we spoke, Victoria, has a nasty wound on the side of her lip from a rubber bullet. She was working at the mine for six months before the described job change-over. Mine security fired rubber bullets at her when she went to the mine for what she thought was a meeting to discuss her employment situation.

This community is a perfect example of why it makes sense to pause mining until relocation is properly negotiated and completed.

Conclusion: Mining and Environmental Justice Conference and Reflections Returning from Limpopo

I am not anti-mining, but I am against mining this way with the disturbing effects that I observed in communities in Limpopo. I was even more disturbed when I heard similar stories repeated over and over again from provinces all over South Africa at the Mining and Environmental Justice Conference[1] in Pretoria, which I attended shortly after returning from Limpopo. The conference was hosted by the Centre for Environmental Rights, the Centre for Applied Legal Studies at the University of the Witwatersrand (CALS), and Lawyers for Human Rights.  It included activists, lawyers, academics, and affected community members.

Since returning from Limpopo, I have also spent some time reading reports about Anglo’s actions in the area. This was partly prompted by feeling startled by a document that cited the 2008 South African Human Rights Commission (SAHRC) report, Mining-related observations and recommendations: Anglo Platinum, affected communities and other stakeholders, in and around the PPL Mine[2], to insist that community members still expressing concern about the deals made with the mine are, essentially, disgruntled splinter groups. I read the SAHRC report for myself, as well as a University of Stellenbosch Business School corporate governance case study on the mine[3].

Both reports acknowledge concerns from Anglo that 1) the involvement of public interest lawyers and NGOs has increased discontent in the region, and 2) that a corporation should not be expected to step in and provide services that are the responsibility of government.

My response to the first criticism is that, based on the interviews that I helped to conduct, communities in the area initiated contact with Richard Spoor Inc. themselves after having a (now disbarred) advocate foisted on them by the mine and traditional leadership. The lawyers and organizations involved are simply helping people to protect their rights, rights that exist regardless of the involvement of any lawyers.

My response to the second is that I sympathize with companies put into difficult positions by bad governance in public institutions, but it behoves those companies to understand the political and regulatory realities on the ground where they intend to operate. That other organizations are not doing their job properly is no excuse for a mining company to undermine owners and occupiers of land above a mineral deposit from which the company seeks to profit.

Both reports, are, ultimately, quite damning of Anglo, criticising its emphasis on “legalistic compliance” rather than real risk assessment and management.[4] The SAHRC points out that Amplats “delegated responsibility for consultation to an organization that was potentially unable to fairly and transparently reflect the collective views of the community.”[5] The corporate governance case study points out that Amplats staff themselves admit that in hindsight the structures set up for community consultation were deeply flawed, “Anglo Platinum staff identified the paying of stipends, the lack of a formal and democratic governance structure, and the occasionally defensive approach taken by the Section 21s’ legal advisors as major problems.”[6]

Both reports ring true to my own observations.

Tamara Jewett
Researcher
tamara@hsf.org.za