From Undemocratic Laws to Violence: How South Africa’s Mine-Hosting Communities Are Silenced

The rural Amadiba community of Xolobeni on South Africa’s picturesque Wild Coast won a rare victory in July when an Australian  company gave up its 13-year  battle to mine titanium  from the dunes that have sustained them for generations.1

That victory came at great cost. Four people were killed in the conflict, most recently in March 2016  when activist leader Sikhosiphi “Bazooka” Rhadebe was shot and killed by attackers posing as police. The struggle has also left the com- munity deeply divided between the minority who were set to gain from a close relationship  with the proposed miner and the majority who wanted nothing to do with mining.

Mineral Resources Commodities (MRC), the Australian  majority owner of Transworld Energy and Mineral Resources, cited the persistent  resistance  of the community as the reason it was abandon- ing its application  for a mining right in Xolobeni. When MRC pulled out, it divested its interest to a local company set up in anticipation of sharing the project. Whether another consortium will try to revive the project is not immediately clear.

The  Xolobeni case  made world  headlines because of the violence against the community and  the  unique environmental wealth of the region. The internationally acclaimed documentary film Shorebreak was a game- changer for the  Amadiba people. But with an  average of 11 public protests a day  to choose from2,  South Africa’s media tend to report on those that happen nearest to their own newsrooms – or that produce the most spectacular images. Against competition at this level, rural people fighting for a voice on mining that affects  their land  seldom make the front  pages.

Construction workers build a road on January 19, 2011 in the Phokeng community in Rusternburg, about 120 kilometres (75 miles) northwest of Johannesburg. South Africa’s Bafokeng people live on the biggest platinum deposits in the world, a resource that has transformed the once-traditional tribe into a mini-state with its own investment company. Photo: AFP /ANP PABALLO THEKISO

As the mining industry’s pursuit of new resources shifts  increasingly towards rural areas such as the Wild Coast, politically connected elites are using a mix of money, political influence, legislation and  intimidation to exclude local people from the benefits of mining and  to silence their protests.

The  interlocking laws  and  regulations that  govern mining do require a limited level of consultation with  communities that  will be affected by prospecting and  extraction. But when that  consultation is inadequate or does not happen, when the wrong people are asked, or when community views are ignored, the  onus falls  on  those who  have  been wronged to tackle the mining juggernaut.

As the  potential earnings from  mines in these remote areas increases, the  space for ordinary people to speak, and  to protest where necessary, is shrinking.

Community members who  dare  to demand a seat  at the  negotiating table  face a politically connected triumvirate of business, government and traditional leaders who together control mining in rural  areas. Their arsenal includes deep corporate pockets, distorted interpretations of custom that position traditional leaders as autocrats, increasingly oppressive legislation, and violence.

As the  potential earnings from  mines in these remote areas increases, the  space for ordinary people to speak, and  to protest where necessary, is shrinking.

Entrenching Apartheid’s Footprint through Legislation

Twenty-two years after the end of white rule, South Africa has  failed  to erase the  spatial footprint of apartheid. Around 18 million of the  country’s 54 million people still live within the  boundaries of the  10 so-called “homelands” to which most black  people were confined. They are the poorest people in the  country. They are least  likely to find work. They  have  the  weakest schools, the least  effective clinics  and  the  hardest road out of poverty.

Unemployed miner Zebedias Xerinda, 53, married with five children walks by his his house in the informal settlement of Marikana in Rustenburg on August 12, 2016. Photo: ANP / AFP MUJAHID SAFODIEN

After 1994,  South Africa’s first  democratic government tried to halt  and  then to reverse the  destructive legacy  of colonial and  apartheid rule with a new Constitution and a flurry of legislation. The task was huge and  urgent. One  of the  shortest and  least equivocal acts of the new parliament sought to prevent further dispossession of rights to customary land  pending the  adoption of a comprehensive land  policy.  That  policy  is still outstanding.

The  three-page Interim Protection of Informal Land  Rights  Act (IPILRA 1996)3 uniquely allows   people to  refuse to  be deprived of  their land   rights, except by expropriation.  It  recognises “beneficial occupation” as  a basis  of a right  in  land. Any decision to dispose of a right  in land owned by a community must be endorsed at a public meeting by a majority of all the rights holders – not  just a majority of those in attendance.

After these early efforts to dismantle the apartheid infrastructure, the  government has  more recently entrenched the  former homeland borders, with  chiefs   exercising extraordinary power within them. The fulcrum of this  reversal is the  Traditional Leadership and  Governance Framework Act ( TLGFA) of 2003, which, 11 years  after the end of white rule, reaffirmed the “tribal” boundaries imposed under the  Bantu Authorities Act of 1951, a cornerstone law of apartheid. The TLGFA recognised traditional councils and  gave them powers over all the  people living within their territory. Unelected traditional leaders preside over these councils and  appoint 60 percent of their members. The  remaining members must be elected by their communities, but some provinces have yet to hold these elections. In North West Province, two elected members of the Bapo  Ba Mogale  council were  suspended by the  unelected majority in 2014 when they demanded a higher level of accountability for community funds and insisted that people should be properly consulted about decisions affecting their land.

Members of the Association of Mineworkers and Construction Union (AMCU) dance and sing around Wonderkop Hill during the 4th anniversary of the Marikana shooting in Rustenburg, South Africa, 16 August 2016. Photo: ANP/EPA/Kim Ludbrook

New legislation that is now in the pipe- line will further dilute rights in land, including the  right  to consultation. This includes the Traditional and  Khoi-San Leadership Bill ( TKLB). In  its  current form,  it again entrenches  the   homeland  boundaries and  proposes that traditional authorities should have  apparently unlimited rights to transact on communal land.  It also pro- poses to drop any obligation to consult the people who will be affected.

In other words, the  institutions of traditional leadership, which should defend the interests of people living on communal land,  have  been handed autocratic powers in post-liberation policies and  laws and seduced by the promise of personal wealth through mining.4 The former “homeland” of Bophuthatswana is a case in point. Most of the world’s richest platinum field, the fabled Merensky Reef, lies beneath its soil in what is  now  North West  Province. The  region hosts some of the  biggest mining companies listed on the London Stock Exchange.

The Bafokeng community, often referred to as “the  richest tribe”, boasts a ZAR41 bil- lion investment portfolio, built from mining revenue on their land.5 In reality, this wealth is held and enjoyed by an elite minority, with 63 percent of the  people in  this  province left to survive  on a monthly income below ZAR604 (about  USD40).6 Royal  Bafokeng Holdings may refer to community members as “shareholders”, but  they  cannot access their own  share of that communal wealth for any personal purpose, such as to respond to a medical crisis in the family. The earth of this  former homeland may be rich,  but  the people who live on it are not.

Rural mining community in Democratic Republic of Congo. Photo: Karen Hayes / Pact

The fact that the  accessible remainder of South Africa’s mineral wealth, valued at an eye-watering USD2.5 trillion7, lies mainly within the   boundaries of  these former homelands has raised the  stakes for every- one  who  can  claim,  buy or just usurp land rights.

The diversion of what should be enough for  everyone into  the  pockets of an  elite minority  has   ignited years   of  simmering  anger at  the  continued marginalisation  of the  rural  poor. Although the  odds are  stacked against them, an  increasing number of communities are  joining with like-minded grassroots formations  and non-governmental organisations (NGOs) to resist the elite capture of the revenue and opportunity that should be theirs.

No Money, No Mobilising

Apart  from  the  competition for attention among so many legitimate needs in a country recovering from the destructive effects of apartheid, the rural location of most mining operations makes mobilisation especially difficult. The Mapela in Mokopane, Limpopo Province, for example, live in 42 villages up to 30 kilometres apart. They cannot walk to a meeting place, nor can they afford taxi fares. Mobile phones should offer an  alternative for planning meetings, but  the  cost  of net- working a dozen community organizers for a 30-minute conference call – around USD15 – is prohibitive for people living  below almost every poverty line. Mobilising to fight for a bigger slice of the platinum pie, or even just to know how big the pie actually is, costs more than they can afford.

From Xolobeni on the southern coast to Mapela in the far north, people are standing up to the mining juggernaut and demanding, in the words of the People’s Mining Charter adopted by communities in June, “Nothing about us without us”.

The  courts are  too  costly  for communities on their own.  Companies and  traditional leaders can  always  outspend them. The Bakgatla Ba Kgafela Traditional Council paid  just one  lawyer ZAR49 million over three years,  mainly to  fight  community attempts to find out where their mining revenue went.8

The  cost  of  equipment, even   smart phones, the  bandwidth required, and  the training needed to get community members involved through social  media platforms means there is a long way to go before rural community voices  are  noticed by  main- stream media and, as a result, by policymakers or legislators.

Violence and Divided Communities

Xolobeni  is  just   one   of  many mining- affected communities hit by violence. The Land  & Accountability Research Centre (LARC) at the  University of Cape  Town  has documented multiple attacks on people and their property in North West Province, Limpopo and KwaZulu-Natal. The police massacre of 34 mine workers during a wage strike at Marikana in August 2012 is an example of the collusion between elites to silence those who bear the brunt of their race for extreme wealth.9   A subsequent  official   enquiry revealed that corporate and  government actors colluded to supress legitimate labour activists.

Complex Agreements

Communities that want to  hold  mining companies to account have  to interrogate highly  technical documents: a task  that is beyond the  means of any private constituency.  Environmental impact assessments, which take  years  of specialist work to pre- pare, must be challenged within a period of weeks. The deals struck between miners and the government are equally dense, and  key elements often are withheld.

In 2014, an opaque deal  between Lonmin  Plc, the  department of rural  develop- ment and  land  reform and  the  Bapo  Ba Mogale, a community of about 40 000 peo- ple  in  North West  Province, swopped the community’s existing 7.5 percent share of the  promising Pandora Platinum mining joint   venture and their right,   protected by the  Mineral and  Petroleum Resources Development Act (MPRDA), to  a 12 per cent  royalty  on platinum profits from  their land  and  the surface rights to that land,  for ZAR640 million in cash  and  equity.10  Two years  later,  affected landholders still have not been allowed to see the documents that detail the deal’s provisions.

With the help of the overstretched Legal Resources Centre, the pro bono division of a major law firm in Cape Town and LARC, two community-based  organisations (CBOs) launched an application in 2015 to review the  decision-making processes that led to the  deal.  It is another uneven battle. Lon- min  has employed many top-flight lawyers and the Traditional Council is paying its own legal bills from  the  very funds the  community seeks  to protect. The CBOs have  to beg and  borrow just to be able  to pull their litigation committee together for a meeting. A year after the case was launched, the applicants have  only recently received copies of the transaction documents – and  then only after signing confidentiality agreements.

Not all members of the Bafokeng community benefit from mining. Resident at Thekwana village near Rustenburg, South Africa. © Gallo Images

The  laws  that  govern mining rights introduce highly  technical requirements, but  none offer  communities assistance in evaluating or  challenging the  interpretations of investors and  developers who want their land.

The MPRDA, for example, requires mining companies to develop and  implement social  and  labour plans (SLPs) to support both their workers and  host  communities. Although these plans are  supposed to  be about them, members of those communities routinely are  refused sight  of them. Communities first have  to fight  for access to the plans themselves and  then they have to fight – and  possibly litigate – to find out what  was actually done.

An extensive study by  the  Centre for Applied Legal Studies at the  University of the  Witwatersrand, which was  released in May 2016, found that communities affected by mining are  not  consulted about these SLPs and  most of the  promises made are neither monitored nor kept.11

Mining companies allege  that government departments insist   they  deal  only with  traditional leaders and  their largely appointed traditional councils, although this  is not  supported by any  law or policy. Communities must work with  civil society partners to prove and  claim  their customary,  common and  statutory rights to  be consulted and  not  merely represented by leaders whose status they dispute.

Conclusion

Colonialism  and   apartheid deliberately confined black  people to the  13 percent of South Africa that white people did not want. Now that this  land  has  been found to hold most of the  country’s remaining mineral treasure, wealthy and  politically connected elites want access to it on the least  onerous terms they can impose. They rely on the law to block avenues for dissent, on the state to enforce those laws and on cynically empowered  traditional leaders to  insulate them from popular rage.

Rural people are fighting back. It is their houses that are cracked by the blasting, their children who become ill from the dust, their perennial water sources that have  dried up or  been poisoned and  their grazing and cropping land  that is being dug  up.  From Xolobeni on the  southern coast to Mapela in the  far north, people are standing up to the  mining juggernaut and  demanding, in the  words of the  People’s Mining Charter adopted by communities in June, “Nothing about us without us”.12

The response from  government has  so far leaned in favour  of the  corporate constituency, which offers gifts, empowerment shares and  sometimes police protection, and  their compliant partners. The Xolobeni story  shows, however, that this  will not  be enough. Eventually, the people will have  to be heard.

This article was first published in Perspectives magazine by the Heinrich Boll Foundation