From Richard SpoorPublished by MAC on 2007-05-26
From Richard Spoor
26 May 2007
The Director General
Department of Land Affairs
Attn: Mr. Chris Schalkwyk <firstname.lastname@example.org>
Re: Ga Puka and Ga Sekhaolelo Communities; Leases of Farms Overysel 815 LR and Zwartfontein 818 LR; Your meeting Scheduled with Anglo Platinum for 28 May 2007
I act on behalf of members of the Langa-Mapela tribe who reside inter alia at Ga-Chaba, Ga Molekana and Ga Puka and Ga Sekhaolelo.
The villagers of Ga Puka and Ga Sekhaolelo face imminent removal from their ancestral lands to a resettlement site on the farm of Armoede. Over 10,000 people face removal from their homes and land on terms that have not been agreed by them, but which have been agreed between the mine, Potgietersrus Platinums Limited (PPL) and the Ga Puka and Ga Sekhaolelo relocation and Development Committees both of which are incorporated in terms of section 21 of the Companies Act. They will be referred to further in this letter as the section 21 companies.
This is the second mass removal of communities undertaken by the PPL mine, the first having involved the relocation of some 7000 people from Ga Pila to a resettlement site on the farm Sterkwater in 2003. That removal and the threatened removals have much in common. The contractual foundations for the two removals are almost identical and as such, much can be learned about the proposed removals from an examination of the calamitous G-Pila removals.
I am advised that on 28 May 2007 the Department of Land Affairs will meet with the Legal Representative of Anglo Platinum to discuss the conclusion of certain lease agreements by the Minister of land affairs. The conclusion of these lease agreements are a condition precedent for the coming into effect of the “relocation agreement” entered into between the section 21 companies and the PPl mine.
In South Africa we have a history of community removals and, or should, be alive to the very severe social, cultural and economic dislocation caused thereby and know enough to proceed with a great deal of caution and circumspection. We urge you to do so in this case.
At an absolute minimum we request you not to conclude any agreements without first consulting the communities concerned in order to ascertain their views on the terms of the proposed removals. I have no doubt at all that consultation would persuade you that the communities are overwhelmingly opposed to the terms agreed, ostensibly on their behalf, by the section 21 companies.
In a letter to you on 7 November 2006, the firm of Hofmeyer Herbstein & Gihwala Inc—which also represents a number of members of the community—called upon the state not to sign any lease negotiated by and between PPL and the Section 21 companies. On 5 January 2007, Hofmeyer again wrote to you, in relation to the same matter, raising additional factual and legal issues for your consideration. We associate ourselves with their submissions and urge you to pay them great regard.
I now write to provide additional factual and legal observations that I hope you will find assists in your deliberations. After a brief overview of the situation in these communities, I will explain how:
(1) The Land Rights Resolutions taken by the communities in October 2002 did not mandate the section 21 companies to enter into any relocation agreement on the communities behalf.
(2) The Relocation Agreements do no not bind community members,
(3) The house sign-on agreements do not constitute valid agreements to relocate,
(4) The “Section 21” companies do not represent the members of the community,
(5) The government’s role as trustee requires the Minister and the Department to preserve trust property, to act with prudence, and to consider equally the interests of successive beneficiaries,
(6) Anglo Platinum and PPL have yet to fulfil their obligations under the Mineral and Petroleum Resources Development Act,
(7) The Minister and the Department should give communities a formal hearing,
(8) The signing of the lease will lead to violations of Constitutional rights, and
(9) The signing of the lease will lead to violations of international law.
A. Background and Overview
The communities of Ga Puka and Ga Sekhaolelo live on the farms of Overysel 815 LR and Zwartfontein 818 LR. The two communities lie adjacent to each other and they can be referred to collectively as the Mohlohlo community. Mohlohlo is the name given to the hills below which the two villages are situated.
These farms are located on the Northern Limb of the Bushveld Mineral Complex, one of the richest mineral deposits on earth. Potgietersrus Platinums Limited, a subsidiary of Anglo Platinum, the world’s leading producer of platinum-group metals, seeks to expand the existing PPL mine and establish a huge pit on the communities’ land. The residential areas occupied by the communities are to be used as a waste rock dump. The expansion of the PPL mine will produce an additional 230,000 ounces of platinum a year, with an approximate value of 2 billion rand. The PPL mine has no BEE component and the communities on whose land the mine is situated have no equity stake in it.
During the apartheid era, Overysel was owned by the Government of Lebowa who held it in trust for the Langa-Mapela Tribe. Under the terms of the 1993 Constitution, the Government of the Republic became the owner of Overysel in trust for the tribe. The farm Zwartfontein was always and still is held by Chieftainess Athalia Langa, in trust for the Mapela-Langa tribe.
In 1998, the two communities each nominated some 15 individuals to represent them in their dealings with the mine to form the so called “relocation committees.” The village Induna or Headmen became ex officio members. Subsequently these committees were incorporated as section 21 companies and the members of the committees became the only members and appointed themselves as the directors of the said companies. As appears from the articles and memorandum of association of each company all the members described themselves as business people.
Members of the community are not members of the section 21 companies and have no control over its decision making or the election of directors.
According to the memoranda of association for each company, “The main object of the Compan[ies] is: The relocation, management and cultural and social development of [Ga Sekhaolelo and Ga Puka villages] in the Mapela Tribal Authority.”
At all times the section 21 companies have been funded by the mine which has paid their salaries, and all their costs including the costs of their legal representatives and so called “advisors”.
The mine supported by the same advisors has established identical structures in about 15 other villages in the Mapela area. It is the position of my clients, which is confirmed by the conduct of the section 21 companies, that they are the proxies of the mine through which it seeks to manipulate and control the communities on whose land it operates. The members of the section 21 companies distinguish themselves only by their slavish obeisance to their master and their enthusiasm to compromise the rights and interests of the community for their own selfish interests. As an indication of their contempt for the rights and interests of the community it should be noted that the relocation agreement provides that each household will receive R20 000 compensation to be resettled; R12000 payable once the household moves and R8000 when the last community member moves. This provision is an inducement to commit violence against residents who do not accept the terms of relocation and who refuse to move. It is in fact criminally irresponsible. If the State fulfils the suspensive conditions by entering into the proposed leases then this offensive provision becomes effective.
Since they were first nominated in 1998 to date, the directors and members of the section 21 companies of Mohlohlo have never submitted themselves to the democratic process. All efforts to persuade them to do so have been unsuccessful.
The members of the Ga-Pila section 21 company were nominated in 1995 some 12 years ago. They have also not ever held an election and they continue in power as “the sole legitimate representatives” of the Ga-Pila / Sterkwater community, as the owners of Sterkwater and as the communities de facto government. The section 21 company controls almost every aspect of community members lives. They exercise that power as despots. Their power and control over the community is maintained by the patronage and largesse of the PPL mine and Anglo Platinum.
The lack of any democratic control and accountability has led to sporadic paroxysms of violence at Ga Pila and at Mohlohlo. Dozens of residents have been arrested and beaten, property has been damaged and there is an all pervasive sense of fear and division. Anglo Platinum and the PPL mine work actively to support the section 21 companies and to subvert their opponents.
PPL and Anglo Platinum maintain that the section 21 companies are the only legitimate representatives of the communities. Both Anglo Platinum and its parent company have acknowledged that the section 21 companies are not democratic but say that this is an internal matter and that the communities have chosen to be represented by undemocratic and accountable structures. They maintain that the section 21 companies have a mandate to bind the members of the community and to give up their land rights on their behalf.
In terms of the proposed relocation scheme, the State and the Mapela-Langa will lease Overysel and Zwartfontein to the Section 21 companies for the purposes of open cast mining for an indefinite period. It is common cause that open cast platinum mining will render the land in question permanently and totally unfit for any agricultural or residential use. The land in question will be consumed and destroyed.
The section 21 companies will in turn sub lease the farms to the PPL mine and the rental amount received will pay for the cost of the removal and resettlement. The section 21 company will become the owner of the portions of the farms Armoede and Rooibokfontein where the Mohlohlo community will be removed to. They will also own the fixed improvements.
The section 21 companies will take transfer of portions of Armoede and Rooibokfontein from the State and from the Anglo Platinum subsidiary companies who presently own it. This land does therefore not accrue to the Langa Mapela tribe. From the perspective of the tribe they forfeit thousands of valuable agricultural land for no contractual advantage to them at all.
It should be noted that over 60 families from Ga Chaba (who are also members of the tribe) have rights to ploughing fields on the farms Overysel and Zwartfontein and that members of several other neighbouring villages also graze their animals on the land and enjoy rights of use and access over the land. These land rights holders have not been consulted much less compensated for the loss of their land rights.
From the perspective of the members of the Mohlohlo community they will lose their homes and several thousand hectares of arable land. The homes will be replaced on a like for like basis. There is no internal plumbing in any of the houses and they will continue to use dry pit toilets save that the pit is now a large polyurethane tank. The arable land will not be replaced and almost 700 families will have lost an important means of subsistence plunging them into greater poverty and reduced food security. To crown their misery they will find themselves under the despotic yoke of the section 21 companies.
In October 2002, the tribe made a land rights resolution, agreeing in principle to relocate subject to agreement on the terms.(For why this land rights resolution is neither a binding agreement to relocate, nor an agreement to give up their land rights to the PPL mine or to anyone else, please see point (1) below). This was the first and last formal resolution taken by the community in relation to the relocations. At no time have the members of the communities been given an opportunity to see much less consider or take advice upon the terms of the suite of agreements regulating their dispossession and removal and resettlement. The only documents that were ever made available to my clients have been those documents disclosed by the section 21 companies in court proceedings. They have never seen the lease or donation agreements to be signed by the state or the Master Agreement. (For an outline of the legal reasons why the Relocation Agreement binds only PPL and the Section 21 companies, please see point (2) below).
Anglo Platinum and PPL make much of the so called “House Sign off Agreements” signed by most households in 2004 and aver that this is proof that all those residents wish to relocate on the terms agreed by the section 21 companies. The “agreements” are vague and incoherent and it is very doubtful that they have any force or validity. I am instructed that people signed them because they were told that if they did not then they would not get a house when they were resettled. Hundreds of residents have since expressly repudiated the said agreements. Copies of the repudiations will be made available if requested. (For the factual and legal reasons why these agreements are not binding on the community members, please see point (3) below).
As has been indicated the Relocation Agreement is subject to certain suspensive conditions, that have yet to be fulfilled, including the signing of these leases to the Section 21 companies by the Minister and the Chieftainess. The Chieftainess has no authority to sign the said lease in the absence of a resolution to that effect taken at a properly convened meeting of the tribe and or with the sanction of the court.
As owner of Overysel in trust for the tribe, the government must decide whether leasing Overysel to the Section 21 Company is in the best interest of the tribe. In particular, the government must be satisfied that it can sign the lease while still complying with its legal obligation as a trustee to protect a trust property from damage without the permission of a court. (For more on the standard of review that the government as trustee should use in considering entering the lease, please see point (5) below).
The government must also decide whether PPL and Anglo Platinum have adequately fulfilled their obligations under the law for mining to take place. (For an explanation of how it would be premature of the Minister to sign the leases before the mining companies fulfil their statutory obligations, and until the Minister and the Department give the communities a hearing, please see points (6) and (7) below).
Anglo Platinum and the PPL mine have not been concerned to have valid and binding agreements in place before proceeding with the deprivation of the communities land rights and the relocation. With the approval of the Section 21 companies the mine has seized their land and begun mining. The communities water supply has been damaged and the community is plagued by dust noise and blasting activities. The mine has sought to create a de facto situation where life becomes intolerable for residents and legal and principled considerations aside residents will have no choice but to move on the terms dictated by Anglo Platinum. (For the likely violations of the community members’ Constitutional rights, and rights under international law, please see (8) and (9) below).
Opponents of the removal have been calling upon Anglo Platinum to meet with them to discuss their fears and concerns. Anglo Platinum has refused to speak or to meet with them. In April my clients conducted elections under the supervision of the IEC monitored by provincial and Local government. Almost 500 residents took part and elected their representatives. The elections were certified to be free and fair. The section 21 embers boycotted the elections. Despite this Anglo Platinum refuses to talk to the community representatives.
Recently the National Council of Provinces visited Mohlohlo and spoke to the communities. A member of the house has now tabled a motion calling for the relocations to be delayed pending the implementation of processes and safeguards to be agreed.
The headman of Ga Sekhaolelo, Induna David Chaba has repudiated the section 21 company and Kgoshigadi Langa has twice made calls for the dissolution of the section 21 companies and the holding of new elections.
It is with respect unthinkable that the State will facilitate and condone the terms of removal by signing the leases without first satisfying itself that the community has in fact given its full free and informed consent to the terms of relocation and that the section 21 companies are replaced or reformed as democratic and accountable structures; to do so would violate every tenet of our democracy and would clearly be unlawful.
B. Additional Factual and Legal Considerations
(1) Land Rights Resolutions of October 2002 are not binding on the communities
In a telephone conversation on 23 January 2007, the Acting Regional Director of the Department of Land Affairs in Limpopo Province informed me that the Department was powerless to act to defend the communities land rights because the communities had passed land rights holders’ resolutions in October 2002, agreeing to give up their homes and their ancestral lands and to be relocated. This appears to be a misunderstanding. As a matter of law, the land rights holders’ resolutions are no more than an “in principle” agreement to relocate. Moreover, the land holders’ resolutions of 2002 do not bind the communities into accepting all subsequent terms imposed upon them by Anglo Platinum, PPL, or the Section 21 companies.
Significantly, the resolutions do not contain details regarding compensation, alternative land, alternative housing, and many other important issues. It is a basic principle of contract law that when an agreement lacks the details of important terms then it cannot be enforced by law. Courts tend to describe such arrangements as merely “agreements to agree.” The Supreme Court of Appeal has noted that “an agreement that parties will negotiate to conclude another agreement is not enforceable, because of the absolute discretion vested in the parties to agree or disagree.”
The land holders’ resolutions for Ga Puka and Ga Sekhaolelo include the proviso that the issues of the compensation package, compensatory land, general social responsibility provisions, and legal agreements were still “subject to the agreement between the community, its legal representatives and the PPL mine.” The Supreme Court of Appeal has stated: “The essentials of a contract of lease are that there must be an ascertained thing and a fixed rental at which the lessee is to have use and enjoyment of that thing.” With no stipulation in the land holders’ resolutions as to level of compensation, it cannot be claimed that a fixed rental was proposed in the land holders’ agreement, and therefore a binding contract to lease has not been formed. The land holders’ resolutions therefore do not constitute binding agreements to lease the land to PPL.
(2) The Relocation Agreements Do Not Bind Community Members
Anglo Platinum and PPL frequently argue that the Relocation Agreements bind the community members. This is simply a legal fallacy.
The Relocation Agreement does stipulate:
6.1 The Section 21 Companies undertake to procure that the Communities undertake to vacate the lease areas and the Communities and the Section 21 Companies undertake to give PPL vacant occupation and possession thereof commencing on the date of fulfillment of the suspensive conditions… …. 6.3 Without detraction from clause 6.1 it shall be the obligation of the Section 21 Companies and the Communities to give PPL vacant occupation and possession of the lease areas, and to institute and pursue to finality proceedings to require such occupiers or possessors to relinquish them, and to which end PPL shall be entitled, and the Communities hereby without detraction from the undertaking which they hereby themselves give to PPL to do so, resign to PPL any rights which they or either of them have in that regard…
However, the Relocation Agreement is an agreement signed between only PPL and the Section 21 companies. The “Communities” are not signatories to this agreement and therefore cannot be bound by its conditions in any way. There is simply no privity of contract, and the agreements are therefore unenforceable against the members of the community.
Similarly, the Section 21 companies are completely unable to relinquish, resign, or assign, any assets that they do not in fact possess. Neither the individual property rights of community members, nor the collective property rights of the community, are held as assets by Section 21 companies. The companies also have no authority to surrender the communities’ most valuable assets and Constitutionally protected rights, including their property, their homes, their secure tenure, their freedom of residence, and their cultural rights. Any representation by the Section 21 companies that they can commit to disposing of the assets held by the community or by individual members of the community, is simply beyond their power (ultra vires), and therefore unenforceable.
It is worth noting that the land Rights resolutions make no reference to the section 21 companies and to the extent that certain persons are mandated to enter into agreements on the communities behalf those persons are not the directors of the section 21 companies. They do however include two headmen one of whom is deceased and the other who has made clear that he will not support the present terms of relocation. The municipal councillor who was also mandated has also indicated that he will not support the terms of removal.
(3) The Sign-Off agreements do not constitute valid agreements to relocate
In 2004, many residents of the communities signed an “Agreement on House Sign-Off,” which included a stipulation that the individual “has agreed to relocate.” However, the agreement was incoherent and vague to the extent that it was extremely difficult to discern what is being agreed to by the signatory. Moreover, the documents stated that the agreements are subject to a number of suspensive conditions that remain unfulfilled to this day, including:
5. a) The conclusion and signing of the Suite of Legal Agreements entered into between the Section 21 Companies, Potgietersrust Platinums Limited…and the Minister of Land Affairs;
b) The Potgietersrust Platinums Limited (PPL) as well as Anglo Plc gets a total approval on the Relocation Project from its Board of Directors;
c) That the entire community / members agrees to the House Sign-Off process (ie acceptance of the house packages).
It is important to note that under condition 5(a) the Minister’s agreement to the process is a pre-requisite for any relocation, and that the Minister is therefore empowered to make an independent decision on whether the relocation process is in accordance with the law.
Moreover, condition 5(c)—that “the entire community / members agrees”—is not fulfilled. Several hundred have expressly repudiated the agreement and others simply do not disclose any consensus. Some illustrative examples of problems I have noticed from the copies of the agreements shared by PPL’s counsel of community residents refusing to agree include:
- In one document, a community member simply annotates “NO” following the sentence “The Owner has agreed to relocate.” He also goes on to provide additional comments for specifications he expects for this replacement house; specifications which have yet to be agreed to by PPL.
- In another, a community member leaves the statement “The Owner has agreed to locate to” blank, provides additional comments for specifications he expects for the replacement house, and the document states clearly: “he does not agree to the compensation paid…The matter shall be [further] discussed to reach an agreement on price.” No such consultation is believed to have yet occurred.
- In most instances only a wife or a husband signed the agreement.In law both spouses consent is required.
In addition, since many community members were told that they had no choice but to be relocated and that signing the agreement was the only way that they would receive a house at the new location, the documents are contracts of adhesion and duress. Many community members signed the documents believing that they faced no other alternative to homelessness and destitution when forcibly relocated, so lacked the necessary free will when they signed the documents. The Minister and this Department should not consider them valid enforceable agreements; no court will.
Finally, several hundred members of the community have subsequently signed statements repudiating the house sign-off documents. It is therefore clear that the whole community do not agree with the “House Sign-Off” process, and therefore under section 5(c) of that document, the process remains invalid and unenforceable.
(4) Section 21 companies do not legally represent all members of the communities
Anglo Platinum and PPL contend that the Section 21 companies act on the communities’ behalf. The support for the relocation by other democratic and accountable structures, such as the local, provincial and national authorities, is no doubt dependent upon their belief of these claims. However, such claims are factually incorrect and legally unfounded.
The Section 21 companies are comprised of only 15 or so members each. In terms of the companies’ Articles of Incorporation, and in conformity with the Companies Act of 1973, only the members of the companies may appoint their directors. As such, the current directors appointed themselves with a handful of their fellow members to their office, and are formally entitled to stay in office for perpetuity.
The High Court in Transvaal has had occasion to consider a Section 21 company with a similarly narrow membership which nonetheless claimed to be a “democratic” representation of its community. In Radio Pretoria v. Chairman, Independent Communications Authority of SA and Another, a Section 21 company claimed to make democratic decisions based on the needs of the Boere-Afrikaner community, even though the Section 21 company consisted of only 52 members, who were the only people who could elect the company’s directors, and all of whom could become members only with the invitation or approval of the Board of Directors. The Court rejected any contention that decisions made by such a Board were in any way democratic, stating that instead the Section 21 Company was:
…nothing else but a blatant and indefensible self-perpetuating oligarchy which is incompatible with the purport and spirit of… ensur[ing] and promot[ing] wider community involvement and participation in the affairs of a community…[T]he exclusion of the members of the relevant community in electing directors has the effect of defeating the very essence of a [company alive and responsive to its relevant] community.
Moreover, under South African law, directors and officers owe a fiduciary duty to act in the best interests of the company, and for the primary purpose of benefiting the company. In the case of these Section 21 companies, each of the companies’ twenty-one members self-identified themselves in the Section 21 companies’ articles of associations and memoranda of associations as either a “businesswoman” or a “businessman.” By doing so, the members indicated how non-representative of the community as a whole they are. But legally, this also binds the directors to only owe a fiduciary duty to these businessmen and women’s interests when concluding any deals or contracts with other parties. In fact, the law precludes the directors of the Section 21 company from taking into account the interest of other non-members—such as the communities themselves —when making decisions. In law, the directors cannot put the communities’ interests above the interests of their members so they cannot represent their interests.
In the circumstances of this case the Directors and members have benefited directly and substantially from the agreements they purported to sign on the communities behalf.
The main object of the Section 21 companies listed in their memoranda of association indicates that their very purpose is to relocate the communities; it reads “The main business which the Company is to carry on is: The relocation, management and cultural and social development of the [Ga-Sekhaolelo or Ga Puka] village in the Mapela Tribal Authority.” With this as their stated goal, it unsurprising—and, indeed it is a legal requirement stemming from the fiduciary duty imposed on the directors—that they are committed to relocation of the communities, regardless of any diverging concerns expressed by democratic representatives of the community.
The Section 21 companies and their legal representatives are funded entirely by Anglo Platinum and PPL, and without their financial support the companies would collapse. It is also unsurprising then—and, indeed it is rational—that the Section 21 companies should be acting in the interest of the mining companies to which they are actually beholden, rather than to the communities.
Although it would be of questionable legal effect, it is nonetheless instructive to note that since 1998 the Section 21 companies have not given the communities any formal opportunity to either endorse or reject the companies’ self-proclaimed mandate to represent the communities in the relocation process. Indeed, as recently as March 2007, a majority of the communities democratically elected a slate of representatives to conduct negotiations. These elections were supervised by the Independent Electoral Commission of South Africa. The elections were deemed to have been both free and fair. Yet Anglo Platinum and PPL have steadfastly refused to meet with these democratically elected representatives of the community.
(5) The government’s role as trustee requires the Minister and the Department to preserve trust property, act with prudence and examine all decisions with careful scrutiny, and to consider equally the interests of successive beneficiaries
The government is trustee of the farm Overysel. Under the common law of trusts a trustee has an affirmative duty to act reasonably to preserve the trust property, and cannot permit the destruction of trust property without the express permission of a court. Indeed, the government may be held liable in damages for breach of its fiduciary duty to act reasonably to preserve the trust property and to prevent the destruction, alteration, misuse, or neglect of property to the detriment of the beneficiaries. The lease is for the purposes of open cast mining which amounts to the destruction of the property. At the very minimum the sanction of the court should be sought before the lease is signed.
The Trust Property Control Act of 1988 requires that a “trustee shall in the performance of his duties and the exercise of his powers act with the care, diligence and skill which can reasonably be expected of a person who manages the affairs of another.” In this instance, the government is therefore obligated to the beneficiaries to do all acts necessary for the preservation of the trust land which would be performed by reasonably prudent individuals employing their own like property for purposes similar to those of the trust. My clients believe that the “reasonable person” standard requires at a minimum that a trustee consult with affected individuals or community to hear their perspectives and concerns before revoking the individual’s property and housing rights.You cannot rely on Anglo Platinum’s say so that the community is pleased and delighted with the terms of relocation.
In addition, where, as here, a trust is created for successive beneficiaries, the trustee owes a duty to act impartially as between or among the generations. Therefore, the Minister and the Department must consider that any agreement that they enter into on behalf of the tribe is of equal benefit as to future generations as to today’s members.
Finally, the Minister and the Department must be particularly careful and prudent in their actions due to the government’s simultaneous role as trustee and potential beneficiary of tax revenue from any mining activities on the lands creates a conflict of interest as to the fulfilment of its fiduciary obligation. Therefore, I submit that the Minister and the Department must subject any deals to a heightened level of careful scrutiny.
(6) Anglo Platinum and PPL have not fulfilled their obligations under the Mineral and Petroleum Resources Development Act, thus it would be premature for the Minister to sign the leases
Anglo Platinum and PPL are required by the Mineral and Petroleum Resources Development Act (No. 28 of 2002) to consult with the affected communities on four separate occasions. Anglo Platinum and PPL have, however, so far failed to comply with these statutory obligations. Although Anglo Platinum and PPL have met and negotiated with the Section 21 companies, as indicated above, these companies do not represent the views of the whole of the communities. The statutory requirement is clear that the prospective mining company must “consult with interested and affected parties” as part of their application for a mining right. The mining company must therefore consult with all affected parties, and the Minister and the Department should not be satisfied with the mining company only consulting with some sub-section of the affected parties. The mining companies failure to do so is particularly egregious considering that it has been made abundantly clear to the mining companies that there are individuals who are to be affected who wish to be consulted, and who believe their views are not adequately represented by the Section 21 companies. As the mining companies have to date failed to follow these statutory obligations, they should be compelled to consult with all affected parties prior to the Minister or the Department furthering the mining process. It would be premature of the Minister to sign the leases prior to the completion of these consultations.
Once a company has secured a mining right, section 54 of the Mineral and Petroleum Resources Development Act provides that land owners may refuse to allow such a holder to enter their land, pending further negotiations with regards to compensation. Should the parties be unable to reach an agreement on compensation, then the Act provides for arbitration or judicial review of the compensation payable. Many of the rightful land owners refuse to allow the mining companies onto their land due to a failure to agree on compensation. The Minister and her Department should delay any decision to sign the lease pending the conclusion of these negotiations to the satisfaction of all affected parties.
(7) The Minister and the Department should give the communities a hearing in accordance with the Promotion of Administrative Justice Act and due process
The Minister and the Department should provide the community members the right to a hearing as guaranteed by the Constitution, common law due process, and the Promotion of Administrative Justice Act (No. 3 of 2002), before making administrative decisions that severely affect the Constitutional rights of the individuals.
The community members were given no opportunity to make representations to the Minister and the Department before the granting of the mining license. Although the Mineral and Petroleum Resources Development Act (No. 28 of 2002) requires the prospective mining company to consult with the communities, such consultation is in addition to the hearings that the Minister and Department must make under the Constitution, other statutes, and our common law. Because the Minister and the Department have been notified by the mining companies’ application as to exactly which communities are to be affected, the mere posting of general public notices in accordance with Regulation 3 of the Act’s guidelines constitutes ineffective and insufficient notification or consultation.
Before the Minister and the Department make this final administrative decision to sign the leases for the communities’ land, they should provide an adequate hearing to the community members. Section 33(1) and (2) of our Constitution guarantees everyone the right to administrative action that is procedurally fair, and that everyone whose rights have been adversely affected by administrative action have the right to be given written reasons. The Promotion of Administrative Justice Act was enacted in 2002 to give effect to these Constitutional provisions, and it stipulates that “Administrative action which materially and adversely affects the rights or legitimate expectations of any person must be procedurally fair.” Therefore, the Act requires that a government administrator must give affected individuals:
(a) adequate notice of the nature and purpose of the proposed administrative action;
(b) a reasonable opportunity to make representations;
(c) a clear statement of the administrative action;
(d) adequate notice of any right of review or internal appeal, where applicable; and
(e) adequate notice of the right to request reasons…
Moreover, “an administrator may, in his or her or its discretion, also give a person…an opportunity to (a) obtain assistance and, in serious or complex cases, legal representation; (b) present and dispute information and arguments; and (c) appear in person.” Given the range of Constitutional rights affected by the Minister and the Department’s decisions in this case—including the communities’ right to property, housing, secure tenure, and cultural rights—this must be the very sort of instance in which the spirit of the Constitution and the Promotion of Administrative Justice Act would demand that the Minister and Department avail themselves of their discretionary power to give a hearing in order to ascertain the the democratic views of the affected communities.
The need for the Minister or the Department to hold a hearing with the communities is further strengthened by our common law. There has been considerable development over recent years in the South African common law with regards to the audi alteram partem rule (“the audi” principle; literally, the “hear the other side” principle). According to the High Court, this principle comes into play: “Whenever a statute empowers a public official or body to do an act, or give a decision prejudicially affecting a person in his or her liberty or property or existing rights or interests, or whenever such a person has a legitimate expectation of a hearing, unless the statute expressly or by implication indicates the contrary.” In such circumstances, affected individuals are due not only a hearing, but also reasonable and timely notice of such a hearing.
In examining the provisions of section 9 of the earlier iteration of the Minerals Act (No. 50 of 1991)—which is very similar in this relevant provision to the 2002 Act—the Supreme Court of Appeal concluded that the Act did not preclude the audi principal. Indeed, the Court ruled:
[T]he audi rule applies when application for a mining license is made to the Director in terms of [section] 9 of the Act. Such a hearing need not necessarily be a formal one, but interested parties should at least be notified of the application and be given an opportunity to raise their objection in writing. If necessary, a more formal procedure can then be initiated…[T]he [audi] rule is indicated by virtue of the enormous damage mining can do... What has to be ensured when application is made for the issuing of a mining licence is that development which meets present needs will take place without compromising the ability of future generations to meet their own needs.
(8) The government signing the lease will lead to violations of Constitutional rights
The direct and immediate consequence of the Minister signing the lease would be the forced resettlement of the communities and the loss of their land and housing, in violation of their Constitutional rights. In light of these likely consequences, the Minister should delay signing of the lease until a formal process has been established to ascertain the democratic will of the community.
Our Constitution guarantees that the State will protect the civil and political rights and the social and economic rights of citizens. Section 7(2) of the Constitution requires the state “to respect, protect, promote and fulfill the rights in the Bill of Rights” and the Minister and the Department are constitutionally bound to ensure that these rights are protected and fulfilled.
As the Constitutional Court has ruled, in cases of potential evictions from land, the State—which includes the Minister and this Department—has a constitutional obligation to satisfy in a “just and equitable” manner, both property rights and housing rights on a case by case basis, considering all relevant circumstances, including the manner in which the occupation or transactions were effected, and the suitable alternative accommodation or land.
The right to property is enshrined in Section 25 of the Constitution, which reads:
(1) No one may be deprived of property except in terms of law of general application, and no law may permit arbitrary deprivation of property.
(2) Property may be expropriated only in terms of law of general application-
(a) for a public purpose or in the public interest; and
(b) subject to compensation, the amount of which and the time and manner of payment of which have either been agreed to by those affected or decided or approved by a court….
(4) For the purposes of this section…(b) property is not limited to land.
The Constitution also provides, in Section 26, that:
(1) Everyone has the right to have access to adequate housing….[and]
(3) No one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances.
As the Constitutional Court stated in Port Elizabeth:
Section 26(3) evinces special constitutional regard for a person’s place of abode. It acknowledges that a home is more than just a shelter from the elements. It is a zone of personal intimacy and family security. Often it will be the only relatively secure space of privacy and tranquillity in what (for poor people in particular) is a turbulent and hostile world. Forced removal is a shock for any family, the more so for one that has established itself on a site that has become its familiar habitat…. The integrity of the rights-based vision of the Constitution is punctured when governmental action augments rather than reduces denial of the claims of the desperately poor to the basic elements of a decent existence.
In Grootboom, the Constitutional Court also concluded:
[The Constitution] recognises that housing entails more than bricks and mortar. It requires available land, appropriate services such as the provision of water and the removal of sewage and the financing of all of these, including the building of the house itself. For a person to have access to adequate housing all of these conditions need to be met: there must be land, there must be services, there must be a dwelling. Access to land for the purpose of housing is therefore included in the right of access to adequate housing in section 26…The state must create the conditions for access to adequate housing for people at all economic levels of our society. State policy dealing with housing must therefore take account of different economic levels in our society.
As the Court went on to state: “at the very least, a negative obligation [is] placed upon the state and all other entities and persons to desist from preventing or impairing the right of access to adequate housing.”
(9) The government signing the lease would lead to violations of International Law
The loss of property rights, housing rights, and the forced relocation of the communities that will result if the Minister signs the lease would also lead to violations of international human rights law. The Constitution of South Africa obliges the Minister and the Department to consider international law in interpreting the Bill of Rights. Moreover, where the relevant principle of international law binds South Africa, it is directly applicable.
Mass forced relocations or evictions violate fundamental human rights contrary to international law. In its “Resolution on Forced Evictions,” the U.N. Commission on Human Rights affirmed that forced evictions constitute a “gross violation of human rights.” The term “forced eviction” is defined for the purposes of international law as “the permanent or temporary removal against their will of individuals, families and/or communities from the homes and/or land which they occupy, without the provision of, and access to, appropriate forms of legal or other protection.”
South Africa has ratified the International Covenant on Civil and Political Rights (ICCPR), which protects individuals from “arbitrary or unlawful interference with his…home,” and guarantees everyone the right to the protection of the law against such interference or attack. The Human Rights Committee, a body established by the ICCPR, has noted that the expression “arbitrary interference” can sometimes even extend to interference provided for under the law as the treaty’s use of “the concept of arbitrariness is intended to guarantee that even interference provided for by law should be in accordance with the provisions, aims and objectives of the Covenant and should be, in any event, reasonable in the particular circumstances.”
South Africa is also a signatory to the International Covenant on Economic, Social and Cultural Rights (ICESCR), which provides similar guarantees to those already existing under South African law. The ICESCR requires states to “recognize the right of everyone to an adequate standard of living for himself and his family, including adequate…housing, and to the continuous improvement of living conditions.” The United Nations body entrusted with authoritatively interpreting the ICESCR, the Committee on Economic Social, and Cultural Rights (CESCR), has stated that “forced evictions are prima facie incompatible with the requirements of the Covenant.” In fact, forced evictions are a step backwards from a state’s obligations, because, by definition, they involve the state’s arbitrary destruction of resources that individuals and families have invested in building their homes.
South Africa is also a party to the African [Banjul] Charter on Human and Peoples’ Rights. Article 14 of the Charter protects the right to property. The African Commission on Human and Peoples’ Rights has interpreted the Charter to contain a right to shelter or housing. Of particular relevance to the case of platinum-extraction, Article 21 of the Charter provides that although “All peoples shall freely dispose of their wealth and natural resources…In case of spoliation the dispossessed people shall have the right to the lawful recovery of its property as well as to an adequate compensation.”
As the facts in this case already adequately demonstrate, forced evictions risk violating not only the right to adequate housing, but may also result in violations of other protected rights protected by both South African and international law. The relocation holds grave implications for the communities, their way of life, their culture, and their ability to sustain themselves. For example, evictions infringe upon the rights to freedom of movement and the freedom to choose one’s place of residence. Violence and reckless destruction threaten the right to security of the person. The harassment and arrest of organized community members who oppose forced evictions can violate the freedom of expression, assembly, and association. The disruption caused to children’s schooling can constitute a violation of the right to education.
Because forced evictions may infringe on such a large number of rights, appropriate procedural protections and due process are, in the views of the CESCR “especially pertinent.” Procedural protections that should be applied include: genuine consultation with those affected; timely information on the proposed evictions and the alternative purpose for which the land is to be used; and the availability of legal remedies for those affected and access to legal aid.
According to international human rights standards, it is the obligation of a country’s government to ensure that in instances of forced evictions “all the individuals concerned have a right to adequate compensation for any property, both personal and real, which is affected.” Compensation must be made following “mutually satisfactory negotiations with the affected persons.”
I trust that this will assist you in your deliberations . Should you have any queries about the points made in this letter, please do not hesitate to contact me. Please notify me of your decision and do so in good time so that there will be an opportunity to challenge the decision in a court of law before the lease is signed, should the decision be adverse to the interests of my clients.