MAC: Mines and Communities

Re: Anglo-american Platinum Corporation Ltd And Two Others: Threatened Interdict

Published by MAC on 2006-07-15

Re: Anglo-American Platinum Corporation Ltd and two others: Threatened Interdict

From: Richard Spoor Attorney

9 ZANZIBAR BUILDING BAGDAD CENTRE PO BOX 8072 WHITE RIVER 1240 Tel: 013 751 1662 Fax: 013 750 1047

10 July 2006 URGENT

To: Brink Cohen le Roux By fax: (011) 242 8001

Ref Mr Le Roux

Dear Willem

Re: Anglo-American Platinum Corporation Ltd and two others / Threatened Interdict

I have receipt of your letter of 6 July 2006 threatening to interdict me if I do not retract statements attributed to me, in which I characterise your client’s conduct towards indigenous communities as profoundly racist, reactionary and offensive.

At the outset I should indicate that I believe that your client’s threats against me are motivated by a cynical, self-serving and hypocritical desire to silence legitimate criticism of their shameful abuse and exploitation of indigenous communities in the areas where they operate. Your client's threats against me confirm and reinforce the impression that they are bullies, intent on intimidating and silencing their critics.

I have not seen all the reports that you refer to in your letter. I am not at all sure that I have been correctly quoted, but, nonetheless and even out of context, I am satisfied that the factual averments made in the extracts that you quote are substantially true and correct and that the commentary is fair and justifiable.

The statements attributed to me are however no more than summaries of, or fair comment upon, what is contained and detailed in pleadings filed in court in the various legal actions brought by my client communities and pending against your clients. These pleadings are public documents and in due course the facts and averments contained therein will be considered and adjudicated upon by the courts. Similar factual averments are likely to be made by my clients in relation to further legal actions contemplated against your clients, and the commentary that such averments are likely to elicit may well be similar to that to which your clients object.

It is appropriate that I sketch the context in which I am quoted in the media and in which I write on the issues relevant to my clients.

I am a human rights lawyer and I have been for over 20 years. In that capacity I represent the poor, the weak and the oppressed. I have represented the people of this country who stood up against the evil system of apartheid and who for their resistance were shot, beaten and imprisoned. I have represented workers who have been crippled and maimed in consequence of corporate greed and contempt for workers’ health and their lives. I have represented communities ravaged by asbestos related disease and the environmental devastation wrought by greedy mining companies aided and abetted by state neglect and a racist corporate culture. Presently, I represent indigenous communities whose culture, traditions, environment and way of life, and even their very existence, are threatened and destroyed at an alarming rate by powerful mining corporations, amongst who are numbered, your clients.

It has been said of multinational mining corporations that they can "exhibit an unbridled desire, a greed that can actually swallow up the earth and its health and the future of its children and that knows no national, ethical, or legal boundaries".

The role of multinational mining corporations and the conflict between them and indigenous communities and the environment is a matter of international concern and the subject of a great deal of writing and research, social activism and intellectual inquiry. It is as well that that should be the case in South Africa, where the social, economic and environmental costs associated with mining are all too evident.

Your client, Anglo Platinum, is the biggest platinum mining company in the world. It undertakes numerous large-scale mining projects in areas occupied by indigenous people, who live in accordance with their traditional laws and customs and who depend primarily on their land and migrant labour to sustain them. It is a notorious fact that the social, environmental and economic consequences of large-scale mining projects can include the loss of productive and culturally significant land, the destruction of environmental systems, the displacement of people, increased dependence on marginal employment and the destruction of local political structures and value systems leading to increases in crime, alcoholism, domestic violence, child abuse and poverty. Regrettably these consequences flow from several of the mining projects in which your clients are engaged and are therefore a legitimate matter for public interest and debate.

Unlike the rich and powerful corporations that you represent, my clients are amongst the poorest, most vulnerable and most disadvantaged communities in South Africa today. My client communities are furthermore situated in remote rural areas and are effectively voiceless. Your clients have the advantage over them in almost every respect; in money, skills, knowledge and resources and of course in the teams of professionals and consultants that your clients are able to deploy to advance their causes and their interests. Their deployment of your excellent firm, ostensibly to protect their good name and reputation, being a case in point.

In the litigation against Anglo Platinum we now have ranged against us the combined skills and resources of three of the biggest law firms in Johannesburg and another two law firms besides, as well as batteries of counsel including a number of the country’s most senior commercial silks. In their corner my clients have the services of a one-person law practice situated in White River, Mpumalanga and the goodwill and support of a handful of committed members of the Johannesburg bar. It is my clients’ great and good fortune that among them we can number some of the very finest and most upstanding advocates in the country who assist my clients at no charge or at a fraction of their usual fee. They are motivated, as am I, by a desire for justice.

It is my brief not only to provide the legal services that they, my clients, so desperately require but also to articulate their plight and to ensure that it is communicated to the wider public and to the world. When I speak or write on these matters I do so for and on behalf of my clients, who otherwise might not be heard. One of the great advantages I enjoy over my clients is my ability to write and speak in English and as such I am uniquely placed to engage with the mainstream media on their behalf.

When your client seeks to interdict me from speaking out on the facts and making fair and justifiable commentary thereupon, they are in fact seeking to silence my client communities and are seeking to prevent me from carrying out my professional obligations towards my clients. That is unconscionable.

Many of the factual and legal averments that your clients object to have already been made under oath by my clients in the various proceedings filed at court against your clients. It is so that almost all of them are disputed by your clients, for that is their wont. So for example:

• We allege that at the PPL mine near Mokopane, you have co-opted the directors of the section 21 companies, that ostensibly represent the community, and that they function as your client’s agents. We make similar allegations in respect of the legal representatives ostensibly appointed to represent and advance the interests of the community. Your clients deny this. • We allege that our clients at Maandagshoek near the Modikwa Platinum Mine are representative of the community and we allege that the person, who your clients choose to recognise as the legitimate traditional leader of the community, has no standing in the community and is not recognised by the State or the traditional leadership of the BaPedi nation. We also allege that in respect of the section 21 companies, established by your clients to represent the community, that they are in fact wholly supportive of our client’s claims and demands. Your clients deny this.

We point out that the section 21 companies are substantial shareholders in the ARM Consortium on whose behalf you purport to act, yet they are wholly opposed to your actions threatened against me. We expect that this is likely due to the fact that while they are nominally influential stakeholders, in practice they have no authority or control at all. That appears to be the pattern here.

• It is common cause that your clients refuse to negotiate with my clients, except subject to certain preconditions, namely that our client recognise your client’s right to come onto tribal land and carry out mining activities there. We see that as unreasonable and amounting to a refusal to negotiate.

• We allege that your clients engineered the shooting, beating and arrest of community members protesting against what we say are your clients’ illegal activities on tribal land. We allege further that your clients deliberately misrepresented the nature and effect of a High Court order to the police in order to achieve this end. This is a serious allegation but all the facts at our disposal confirm it. Your clients deny that they orchestrated police violence against the community. We hear your clients but we don’t believe them. We believe that they are guilty of thuggery and are taking the matter further through the courts.

• We allege that your clients engineered the arrest of the traditional leaders of the Maandagshoek Community through the laying of false and spurious charges. This action was widely perceived as an attack on the community, its culture and its leadership. It caused huge offence. Your clients deny this.

• We allege that your clients have unlawfully damaged and destroyed arable lands, fences crops and infrastructure on tribal lands. Your clients deny this.

• We allege that despite having been ordered to stay off tribal land at Maandagshoek and in breach of the express provisions of the Interim Protection of Informal Land Rights Act, your clients persist in making provocative forays onto tribal land and that in doing so they demonstrate a complete disregard and contempt for the community’s land rights and for the due process of the law. Your clients deny this. • We allege that your client’s mining activities have caused significant damage to houses and to the communities’ groundwater resources at Maandagshoek (as they have in many other communities) and have caused significant pollution. Your clients deny this and refuse to take responsibility. They make out my clients as liars and opportunists. We reject that. My clients are overwhelmingly decent and honourable people.

• We allege that the terms of the relocation of the community at Ga-Pila and the proposed relocation of the communities of Ga-Puka and Ga-Sekhaolelo are overwhelmingly disadvantageous and prejudicial to the best interests of those communities and are destructive of the culture, their traditions and their political and social structures and their way of life. Your clients and their acolytes equate the relocation with the arrival of the Israelites in the Promised Land.

• We allege that Anglo Platinum pays the legal advisers (ostensibly employed to advise the communities) and the so called community leaders charged to facilitate the relocation of the communities or the conclusion of agreements with the mine. We say that this has a corrupting influence upon them and that they subordinate the communities’ interests to those of your clients. The shameful and prejudicial terms agreed by some of these representatives on the communities’ behalf and their sycophantic behaviour towards the mine lend credence to this. Your clients deny this.

• We allege that Anglo Platinum structures the contractual aspects of the removal of indigenous communities in such a way that it has no responsibility in law, for the fate of those communities once they have moved. So for example if, after the relocation, the communities find themselves without water or other essential services and their houses fall apart, they have no recourse against the company. In what is surely one of the most grotesque and cynical examples of legal draughtsmanship that I have encountered in my career, the contracts are structured in such a way that legally the communities relocate themselves, Anglo Platinum only puts up the money.

• We allege that Anglo Platinum has structured the payment of the cash incentive, given to members of the Mohlohlo communities to relocate, in such a way that those members who have relocated have a significant cash incentive to “persuade” those who might refuse to move, to relocate. We allege that this is an incentive to commit violence and intimidation against people who might resist the relocation and that the wilful incorporation of such a provision in the contracts is a criminally irresponsible act and contra bones mores. Your clients deny this.

• We allege that when twenty-six families refused to relocate from Ga-Pila your clients illegally destroyed their water supply and their electricity connections and that they destroyed the entire village infrastructure around them. Then your clients arranged that the old men and women of the village were arrested for ploughing on their own lands. The 25 families now live in poverty and squalor without even the most basic services guaranteed them by the constitution of this fair country. Anglo Platinum refuses to take any responsibility for their plight or to negotiate with them and has turned their land into a waste rock dump. Your clients deny this. • We allege that Anglo Platinum would not treat white people and white communities the way they treat poor black people and indigenous communities and that your client’s conduct is inherently racist. This perception is solidly entrenched among my client communities, where your clients are universally reviled. Your clients deny this.

• We allege that the terms of the agreements entered into by Anglo Platinum, granting them access to tribal land, are grossly inequitable and a manifestation of the unequal power relations between the corporation and our client communities. We allege that insofar as those power relations are predicated upon a history of white privilege and power and a history of oppression and discrimination against black people, they are inherently racist.

So, for example, we allege that your clients concluded a deal in 1993 with the Bantustan authorities to lease three farms belonging to the Langa tribe for R5,000.00 rand per annum per farm. Today these farms generate billions of rand in profit for your clients each year. Almost 10 000 hectares of arable land have been lost to the tribe and thousands of people are being relocated in consequence of this ‘deal’. Your clients deny this.

These disputes are central to your client’s claim that the statements attributed to me are false and defamatory. The disputes are fundamental and not amenable to resolution in application proceedings such as you propose to bring against me and such proceedings are therefore inappropriate.

The above is not an attempt to catalogue all the obscenities committed by your clients against indigenous communities to date, they are but some of those that are presently raised in the legal proceedings filed to date. The Magobading community’s fate at the hands of Anglo Platinum and the lawyers appointed by the mine to ‘represent’ their interests, although not yet before any court, does however deserve mention.

This traditional community was removed by Anglo Platinum to make way for their new Twickenham mine near Lebowagomo. The original village was well situated below scenic hills with ample water, grazing and land for cultivation. Although the people were poor they lived dignified lives, sustainably and in peace and harmony with each other and their environment. Then they were removed by your clients to a township called Mecklenburg A. At Mecklenberg A they have no water, they have no grazing and they have no arable land. They live on tiny erven in poorly constructed houses. There is not a blade of grass to be seen there. The ventilated pit latrines provided them are full to overflowing and there are no municipal services to clean them out. The stench of the overfull latrines is overpowering and maggots and pestilential larvae teem out of the toilet bowls in their millions.

The community has been dumped into an unsustainable rural slum by your clients. Your client’s promises of jobs and the promise of their slogan “Sharing Platinum Prosperity” have been shown up as lies.

If your client’s good name and reputation has been impaired and they have suffered economic harm as a result, it is in consequence of their treatment of the communities among whom they operate. Silencing the messenger will not change that.

My clients and I are open to a dialogue and negotiation with your clients, if anything we are even more anxious than they are, to find solutions and to mitigate the harm and injustices that have been inflicted upon them. When, as now, your clients are confronted by their critics it may be tempting and emotionally satisfying to counter-attack but it rarely helps. Gestures of respect and offers to co-operate are much more productive. Acknowledging past mistakes and misbehaviour is likely to contribute more to a successful outcome and improved relations with neighbouring communities then the patently self-serving expressions of deep hurt and moral outrage that characterise your client’s public responses to date.

We trust that your clients will reconsider their approach. We really cannot see how your client’s aggressive and brutish campaign against indigenous communities and against their legal representative increases shareholder value.

I am also willing to give you my earnest assurances that while you can expect me to speak out and to decry any wrong done against my clients, I will not knowingly make any false or defamatory statements in relation to your clients and will confine myself to commentary that is fair and justifiable in the circumstances.

Please be advised further that I intend to go on holiday with my family with effect Sunday 9 July 2006 and do not expect to be back in the office before Monday 17 July. I would be grateful if you would hold off any proceedings until my return.

Yours faithfully


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