A famous victoryPublished by MAC on 2006-07-27
A famous victory
27th July 2006
Last week the Ga-Mawela community succeeded in obtaining a court order which will force Anglo American's subsidiary, Anglo Platinum, to surrender part of its surface mining lease.
This may seem minor, in terms of the land area now made available for sustainable farming.
Nor can the decision necessarily provide a precedent for other beleaguered black farmers to press their claims (such as those fighting the same company in Maandagshoek - see http://www.minesandcommunities.org/Action/press1150.htm)
Nonetheless, this is "the first case of [South African] labour tenants having expropriated land restored to them, "according to Ga-Mawela Land Claims committee secretary, Tiny Mangkwe.
Although Anglo Platinum decided not to contest the claim when it finally came to court, the battle continues between the community and company over construction of a dam (whose benefits would be shared with Xstrata plc). The Ga-Mawela say that, not only is the dam unnecesary and would flood scarce agricultural land, but will also reduce access to vital water supplies.
Anglo Platinum ordered to return mining land to Ga Mawela community
Creamer Media's Engineering News Online
27th July 2006
The Randburg Land Claims Court had ordered Anglo Platinum to return ancestral land in the Limpopo province to the Ga Mawela community, spokespersons for the Ga Mawela said in a media release on Wednesday. The court order brought to a close a five-year dispute between the Ga Mawela and Anglo Platinum and its subsidiary Rustenburg Platinum Mines (RPM), the release said. Anglo Platinum could not be reached for comment on Wednesday and Mining Weekly Online left several messages for the company's spokesperson. The Ga Mawela spokespersons said in the release that the court had ordered the Department of Land Affairs to purchase the land from RPM, if possible by agreement, but otherwise by expropriation, and pass it on to the community.
Ga Mawela legal representative Durkje Gilfillan was quoted in the release as saying that, although the court order was not a precedent in the strict legal sense, the case had set a precedent for the mining sector, under which a mining company would be obliged to manage its mineral rights and mining interests in a manner that did not conflict with the rights and interests of other land users. She was quoted further as saying further that the outcome of the case would ensure a "balance of rights and interests" for the benefit of both parties, which did not exist under previous mining legislation. The release said that the Legal Resources Centre in Johannesburg had represented Ga Mawela from the time matter had first been filed in the land claims court in 2001. The Ga Mawela community, it said, had won the first stage of a court battle, which involved proving the legal validity of its land claim in terms of the Restitution of Land Rights Act, 2004.
The land restitution process had been part of the national land reform programme aimed at redressing past racial measures that had dispossessed black communities of their ancestral lands, which had formed a key element in the "process of subjugation" of indigenous communities. The community, the release said, had been known in earlier times for its rainmaking, farming and herbalist skills and said the court had been told that the community wished to protect several sites of sacred importance to it, including pools and caves, some of which remained secret. These were located on the farm St George. The community had in 1998 lodged a claim on the platinum and water-rich St George farm, which was situated near the mining town of Steelpoort in Limpopo, which had been published in the Government Gazette of May 2000. It then took the "unprecedented" step of prosecuting its claim. It brought a "direct access" application to the Land Claims Court without assistance from the Commission on Restitution of Land Rights, the release said.
The community had since that time been involved in the case with RPM, which, the release said, had been mandated to acquire property for Anglo Platinum's mining operations. RPM was said to have purchased St George after the land claims commission had validated the land claim and had proceeded to oppose the claim in court. Ga Mawela land claims committee secretary Tiny Mankge was quoted in the release as wondering whether Anglo Platinum would ever apologise to the community for subjecting its leadership to the indignity of interrogation in court by a former advocate of apartheid forced removals - and by implication past racist policies. "It can never be in the best interests of shareholders to oppose measures to address past racial actions by the apartheid state. The whole episode was highly offensive," she was quoted as saying.
Gilfillan added that the claim was about restoring the rights of a former labour tenant community that had been dispossessed of their land under apartheid. The case, she said, would also set a precedent for communities claiming land owned by mining companies. The community had lodged a 1 800 page technical submission to prove to the court that it was economically feasible to develop the farm. The community stated in its submission that there were no mining, environmental or other factors which would make its plans for agricultural and residential use of the land hazardous or impractical.
In the community submission before the court, Ga Mawela Land Claims Committee chairperson Mabutswe Lazarus Mankge reportedly stated that unemployment was a "very serious" issue for the Sekhukhune district, and currently stood at 69%, far more than the provincial average of 49%. This represented the lowest percentage of people in employment in all districts in both Limpopo and Mpumalanga provinces, he is quoted as saying. He said that the St George farm would make a significant contribution to household food security, and provide for extra income through the sale of surplus produce in local markets and further afield, in the longer term.
A household survey conducted among the community showed that 77% of the claimants depended on some form of social grant from government; 11% of the claimants were in formal employment; and 12% self-employed. He said that, given that 66% of the income received from government grants was spent on buying food, it was hoped that an improvement in the socio-economic status of the members of the community would allow more children to complete their formal schooling and, therefore, become eligible for jobs in the mining, tourism and related sectors. Mining Weekly Online reported this month that Anglo Platinum had wanted to build the Richmond dam on the land owned by the community to provide water to its water-short operations on the eastern limb of the Bushveld Complex.
With the claims court ceding ownership of the land to the Ga Mawela community, it would now have to negotiate with the community, which was reportedly against its building on the grounds that sacred pools would be flooded as a result of its construction.
In an exclusive interview with Mining Weekly Online Mankge said that the Department of Land Affairs expropriation process should take about six months.
"This is a test case and the first case of labour tenants having expropriated land restored to them," Mankge said.
She claimed that Anglo Platinium had not consulted the community on matters that involved the land surface and had begun digging culverts in the river and drilling out canals that led to retaining dams.
She said that the furrows, developed in the 1800s, were still in working condition.
The community would have to repair the furrows and would ask Anglo Platinum to replace the irrigation equipment it had removed from the land.
"Although Anglo Platinum has the mineral rights to the property and are involved in underground mining, I don't understand why they were holding on to the surface land," she said, adding that Anglo Platinium's entry to its underground mine was through adjacent land.
Manke pointed out that, aside from losing shareholders money, Anglo Platinum could have spent the money it had used to fight the case against them on corporate social investment.
She added that the Land Claims commission would provide the community with technical advice and financial resources for it to develop agricultural and livestock plans.
The community planned to grow crops and farm livestock and was keen to work the land as soon as possible.
There has been a commitment from the Department of Agriculture to assist in setting up a cooperative for commercial goat farming and in assisting with agricultural marketing activities.
She claimed that Anglo Platinum planned to sink two ventilation shafts on the property around 2035.
Land court restores rights to tenant labourers
by Neels Blom, Agriculture and Land Affairs Editor
Business Day (South Africa)
27th July 2006
IN THE first successful case brought before the Land Claims Court for the restoration of land rights to tenant labourers, the Ga Mawela community yesterday won a ruling that would return ownership of their land to them.
The claim was lodged in October 1998 and validated in a ruling in the Land Claims Court in 2004.
The Ga Mawela community lost ownership of their land in 1871, when the government of the Zuid Afrikaansche Republiek awarded the land in the Steelpoort area of what is now Limpopo, to one of its officials. The Bakone Ba Mankge, the Pedi clan who had made up the original Ga Mawela community since 1830, then became labour tenants whose rights to remain resident were conditional on their provision of free labour to the new white farm owner.
The community's claim on the land, which became known as the St George farm, was made under government's land reform programme. The Ga Mawela community's claim forms part of a larger land claim project which includes a second portion, Richmond farm, of the community's original land.
They could not, however, claim for the restoration of ownership because the Restitution of Land Rights Act does not permit land claims in respect of dispossession that occurred before the promulgation of the 1913 Land Act. Instead, they lodged their claim based on their rights as labour tenants.
The validity of the claim was challenged by the owner in 2004 but the subsequent owner and respondent in the matter, Rustenburg Platinum, which acquired the farm to gain access to the water for use in platinum mining, did not oppose the claim. Anglo Platinum owns the mineral rights in most of the district.
For yesterday's motion to succeed, the Ga Mawela community was ordered in 2004 to formulate a plan for the development of the farm. It also had to provide proof of community participation in the planning, its commitment to the plan and show that it was economically feasible to develop the farm.
It also had to show that its activities would not affect the rights of the owner of the mineral rights. The court ordered the land affairs department to help the community create a business plan and feasibility report.
At yesterday's hearing, the community submitted that the farm would be permanently inhabited by nine households only, who would conduct limited stock and cultivation farming.
Durkje Gilfillan of the Legal Resources Centre, which helped the community with its claim, acknowledged yesterday that an eight-year process was a long time for people to remain in poverty, but said that it was more important to "make haste slowly" to ensure community participation and agreement from all parties, including government.
Anglo Platinum and Ga Mawela community differ over need for dam
Creamer Media's Mining Weekly Online
9th July 2006
It's the kind of thing that tempts one to conjure up the stereotypes portrayed so readily in Hollywood blockbusters.
The opportunistic community seeking a quick buck versus the mining company aiming to bring development and job opportunities to a poor and mainly agricultural area. Or, the village thug strong-arming a helpless community into submission in order to improve his earnings.
However, nothing is ever as simple as Hollywood professes.
Anglo Platinum hopes to build the Richmond dam to acquire the water it says its new multibillion-rand platinum-mining projects need - but it can not simply ignore the surrounding communities. After all, these days, theirs is a polyglot world. Mining companies need to speak profit, beneficiation, royalties and social responsibility. They can no longer mine, fearless of the consequences and purely in favour of the bottom line.
The Ga Mawela community argues that the Richmond dam will affect irreversibly part of the area it has a land claim on, but that it under-stands Anglo Platinum's thirst for water. However, it does not view the Richmond dam as the best solution to the problem.
Ultimately, both seek prosperity in an environment where resources are scarce.
We need the dam - Anglo Platinum
The planned Richmond dam will be located on the Klein Dwars river, which flows into the Dwars river - which is, in turn, a tributary of the Steelpoort river - which ultimately flows into the Olifants river near the village of Taung. The Olifants river then flows towards Mozambique.
The Richmond dam will be about three farm boundaries away from the proposed De Hoop dam. The De Hoop dam forms part of the Olifants River Water Resources Development Project (ORWRDP).
This R4-billion venture, managed by the Department of Water Affairs and Forestry (Dwaf), aims to secure water supply to several towns and various rural communities in Limpopo, including Polokwane, as well as to unlock several platinum projects, especially around Mokopane, including Anglo Platinum's Der Brochen and Mototolo mines, both still in their infancy.
The booming eastern limb of the Bushveld complex is home to some of the world's richest platinum resources, as well as other commodities - but it is short of water, a vital ingredient in the mining process.
The vibrant mining industry and its need for water is best illustrated by the fact that the joint water forum with which Dwaf is negotiating uptake from the De Hoop dam - the mines in the area using the water will pay for the costs of the completed dam through an agreed water tariff - consists of 18 corporate members, including Anglo Platinum. The number of actual mining operations represented in this forum is more than 30, and most of them need more water than they have available at the moment.
However, construction of the De Hoop dam has not yet been given the final go-ahead by the Department of Environmental Affairs and Tourism (Deat).
The department is currently considering several appeals filed against the development of the ORWRDP, most of them focused on the effect damming the Olifants river will have on the downstream ecology and water users. This makes Anglo Platinum and other members of the joint water forum jittery that the De Hoop dam - which is scheduled to be completed by 2010 - may not be built.
After all, the proposed N2 toll road, stretching from East London to Durban, was given the green light by Deat from an environmental perspective in 2003 already. However, the decision was appealed vigorously, with the approval subsequently overturned.
Now, three years later, the toll-road project is the subject of a new scoping report, which will indicate the extent of a fresh environmental-impact assessment (EIA) process.
"The building of the Richmond dam is a mitigation process to deal with any possible delay in the construction of the De Hoop dam," explains Anglo Platinum spokesperson Simon Tebele.
And delays are not something any platinum-mining company desires at the moment. The current four-digit platinum price has caused a few champagne bottles to pop their corks as boardrooms and investors celebrated its upwards surge.
Short of $1 200 an ounce, it has rocketed skywards, along with other commodities, in recent months. In May last year, it was a mere $860 an ounce.
The question is how long the good times will last - gold's fortunes have faded fast in recent weeks, vault-like in the drop from more than $700 an ounce to far below $600 an ounce in a matter of days.
Tebele also notes that, according to current studies, the projected volumes required from the De Hoop dam will be oversubscribed by 2020 or 2025 - another reason to build the Richmond dam.
"Hence, Dwaf will need to secure other sources of water for the area as well."
Tebele adds that the dam will not only benefit Anglo Platinum, but that it will also be available as a water source to local communities, as demanded by Dwaf.
The project's progress
The draft environmental scoping report for the 13,5-million-cubic-metre Richmond dam has been issued for public comment.
This is the first phase in the EIA process, and provides an outline of what the EIA will investigate, as well as garnering all opposition to, support of, and comments on the project.
The final EIA report will have to be approved by Deat.
The Richmond dam is in the planning phase, says Tebele.
"The process involves a careful study of the proposed development benefits, and its various impacts upon the area which include issues such as access, lawful water use, and impact on land use, including arable land, cultural significant burial sites and sacred sites.
"The development of a water resource in any catchment area usually elicits many comments which need to be dealt with through a process. Vigorous comment about the planned dam should not necessarily be interpreted as widespread opposition.
"There is a transparent process where issues can be debated in a constructive environment."
Dwaf ORWRDP project manager planning Ockie van den Berg says the department has not yet received a licence application from Anglo Platinum for the Richmond dam.
"We are in the process of studying their scoping report.
"We cannot currently comment on the merits of the project."
Tebele says it is not yet necessary to apply for a licence.
"While discussions have been held with the relevant departments of State, it is necessary to carry out the EIA first and, thereafter, in the event of a successful record of decision (approval for the project from Deat), the company would apply for the necessary licences in terms of prescribed procedures."
Why we don't want this dam - Ga Mawela
The chutzpah to take on the world's largest platinum company comes in the form of Tiny Mankge.
She is the secretary of the Ga Mawela Land Claims Committee, as well as a descendant of the late Kgoshi (chief) Mapale Mankge, and the daughter of the late Kgoshi Maruping Mankge of the Ga Mawela Community, who was instrumental in lodging a land claim on the community's ancestral land in 1998.
Kgoshi Maruping Mankge passed away in February this year.
Tiny Mankge says even though the community is opposing the construction of the Richmond dam, it should not be viewed that it does not want any development in the area, nor that it is giving mining the cold shoulder.
"Sekhukhune district and Limpopo province need the economic capital injection created by the mines."
She adds that the community appreciates the urgent need for water by mines in the region.
"The water-supply crisis for the mines on the eastern limb of the Bushveld complex is an issue of national importance.
"The crisis has given rise to a battle for survival among mining companies over available water resources in tributaries of the Olifants river, particularly the Steelpoort river and Dwars river catchment.
"Water is a basic resource used by mines for construction, controlling dust, and minerals processing."
However, there are many reasons the community views the Richmond dam as a bad idea.
"The project's draft scoping report indicates that the multi-billion-rand Der Brochen mine and Mototolo joint venture cannot be delayed until the De Hoop dam is completed, and that the Richmond dam is needed," says Mankge.
But the dam will flood 50 ha of St George farm, land which was restituted to the Ga Mawela community in June 2004, she adds.
(It is interesting to note that all the farms the De Hoop dam will flood are also subject to land claims. Also, Anglo Platinum's Richmond farm, on which the Mototolo project will be developed with partner Xstrata Alloys, is another subject of a land claim by the Ga Mawela community, although this claim has not yet been validated by the regional land-claims commissioner.) "The dam will deprive the community of valuable agricultural land. The community wants to ensure that the land remains suitable for economic use - including agri-business and livestock farming," says Mankge.
Tebele argues that the community's land claim on St George farm has been validated by the Land Claims Court, but that its decision to finally restore the farm to the community will only be made on July 25.
"Issues which the land court will take into consideration are the community's business plan, the agricultural carrying capacity of the farm and the formation of a communal property association.
"Given these issues, it would be prudent not to anticipate the court's findings on this matter."
Mankge says other reasons the Richmond dam finds itself in the community's cross hairs are that the community will not have access to the dam for irrigation purposes and that some of the cultural sites, including sites of cultural significance, such as grave sites and sacred sites, will be affected by the construction of the dam. Sacred sites include pools in the Klein Dwars river used for rainmaking rituals.
"Also, the proposed project can negatively affect the sustainability of the De Hoop dam project, which is intended to provide potable water to the Jane Furse area, where most of the Ga Mawela community resides," says Mankge.
The Ga Mawela community fears that the Richmond dam will cause loss of water supply into the river and the wider Olifants river catchment system, of which the proposed De Hoop dam is an integral part, as well as the loss of funding and financial support for the De Hoop dam project by Anglo Platinum, its subsidiaries and other mines in the area.
Ultimately, asks Mankge, what happens if the proposed project renders the construction of the much-needed De Hoop dam superfluous?
"It will also be bad if government's redress programmes, such as land restitution, are frustrated by bad planning and over competitiveness, and even greed by the mining companies."
What action is the community then prepared to take against the construction of the Richmond dam?
"The Ga Mawela community is peace-loving, and a community with integrity. We have raised our concerns regarding the Richmond dam through our attorneys, the Legal Resources Centre (LRC), to Anglo Platinum and its EIA consultants.
"We have also submitted a detailed objection and questions for clarification to the consultants and are awaiting a response.
"Despite the community being the affected stakeholder, the EIA consultants have not bothered to make the process accessible to the entire Ga Mawela community.
"Initially, not one copy of the scoping report was placed at the affected farms or the surrounding black communities some kilo-metres away from the proposed project, and we object strongly to this," says Mankge.
As an alternative to the Richmond dam, Mankge suggests that Anglo Platinum keep on pursuing the construction of the De Hoop dam, as well as making use of an extension of the Lebalelo pipeline currently under construction from Modikwa mine to Richmond farm. This pipeline should be completed by September. (Modikwa is a joint venture between African Rainbow Minerals and Rustenburg Platinum, a subsidiary of Anglo Platinum. The Lebalelo pipeline network is funded by several mining companies, and originated owing to the urgent need for water at mining developments.)
"We believe the company could use its allocation from Lebalelo until De Hoop dam comes on stream. We find it quite strange that the draft scoping report omitted to mention Lebalelo as an alternative source, despite the fact that the project is nearing its completion.
"The allocation from Lebalelo can also be supplemented with ground water."
Mankge also questions why mining companies in the region fail to cooperate, especially since water is a scarce commodity.
"We do not see why mining companies along the Dwars river can not share water resources - such as the Inyoni dam (downstream of the Richmond dam site) which belongs to Two Rivers mine, which is managed by Impala Platinum, or the Der Brochen dam, on which Anglo Platinum and Thorncliff mines have user rights.
"Anglo Platinum can also upgrade and improve on these available resources rather than further disadvantaging the community.
"It is time the mining companies practise the sustainable development they all talk about in their annual reports."
The road ahead
The Ga Mawela community's legal representative, the LRC's Durkje Gilfillan, says once a business plan has been presented to the Land Claims Court for the use of the land, and the court is satisfied with this plan, St George farm will be transferred to the community.
This will put a halt on the Richmond dam development in its current shape and form.
The community approached the LRC for assistance in bringing its land claim to the Land Claims Court. No legal action is planned around the proposed construction of the Richmond dam yet.
"The Richmond dam will have no wider social benefits.
"We call on national and provincial government departments to monitor the situation carefully. The land claimants are watching the situation with interest," says Mankge.
For the moment, "the Ga Mawela are making inputs into the scoping phase of the EIA and will continue to remain involved", says Gilfillan.
The LRC is a public-interest law firm which acts for communities and persons free of charge, and is a fully-fledged attorneys firm.
The centre is funded through the Legal Resources Trust, which solicits private funding from both overseas and local funders for its work. The centre concentrates on developing socioeconomic rights jurisprudence and assists in the enforcement of those rights, explains Gilfillan.
As for Anglo Platinum, the mining giant is eagerly awaiting the July 25 verdict by the Land Claims Court. Until then, it's checkmate.
Contact: TINY MANGWE at: email@example.com