Johannesburg - "We disappeared for two weeks,” Lesego Kgobane said with a giggle that was strangely carefree for the situation. He sat in his yard in Bapong, North West, with Abbey Mafate, a former member of the Bapo Ba Mogale traditional council. Mafate and another elected member of the council were asked to consent to a new deal between the community and one of the world’s major platinum miners, Lonmin, in 2014.
The agreement exchanged the royalties Lonmin formerly paid the Bapo to mine on its land for equity in the company.
Mafate and the other council representative, Tshepo Maakane, said the request for their involvement was not preceded by adequate community participation, so they publicised the plan. Multiple suspensions from the council followed.
Violence struck the community as residents fought over the deal, with one man landing in hospital in September after a mob – a paid and organised one, many argued – attacked with pangas, leaving him with 14 stitches in his head.
The afternoon sun cast lengthening shadows as Kgobane explained how “we went into mini exile” for several weeks in late 2016.
“Eh, it was bad, my friend,” Mafate agreed.
On Monday, Public Protector Busisiwe Mkhwebane visited Bapong to give an update on her office’s investigation of additional past royalties paid to the community, that went missing.
Both the Bapo tribal council and the North West provincial government are implicated in the report, and now have the ability to respond to allegations before the report is finalised and published, Mkhwebane’s spokesperson told The Star.
Before Thuli Madonsela left her former position, she told the community that a final report would be issued around December. Mafate said the community were “exasperated” when they learnt that the report had been further delayed, but they would follow Mkhwebane’s new deadline of April 30. At Monday’s meeting, Mkhwebane said her office could make findings that people found stealing public funds be forced to pay back the money from their personal accounts. “If there was criminal conduct involved – especially fraud, misappropriation of funds – we would have to work closely with the Hawks to investigate those, and those who have misappropriated state funds,” she said.
Mafate said: “The government officials must be taken to the task, they must account. It’s time for us to be able to say that there is justice in Bapo Ba Mogale.”
The traditional council commissioned its own forensic investigation into the missing funds, but its report was submitted to the public protector and will not be released until Mkhwebane’s report is out.
The ongoing struggle to determine how the Bapo’s money disappeared and who benefits from the new Lonmin deal prove telling of how international mining houses interact with communities residing on South Africa’s communal lands.
Brendan Boyle researches the relationships between mining houses and communities on communal land from his position at the Land and Accountability Research Centre at the University of Cape Town.
He said that the borders of these lands – which account for about 13% of the country – reflect the same borders created by pre-apartheid land acts.
“Anybody who lived within those boundaries automatically was subject to customary rule by a chief, who was often imposed by the previous government or reaffirmed by subsequent governments,” Boyle said.
A bill that is in the final round of public consultation before it heads to Parliament could grant these authorities further power to strike deals, as the Bapo did with Lonmin.
Experts such as Boyle have denounced the Traditional and Khoi-San Leadership Bill (TKLB).
“It gives chiefs authority to contract on communal land without consulting people at all. The TKLB has stripped out even the very few requirements on a chief to consult his people,” he said.
The TKLB will repeal and replace the current legislation, which is called the Traditional Leadership and Governance Framework Act.
When the framework act came into effect in 2004, it solidified the standing of traditional authorities, some of whom had been instated in the former homelands.
However, it required traditional councils to be reconstituted within a year, a time frame that has been extended several times. When or if the TKLB will become law is yet uncertain, so a memorandum of amendments was recently published, declaring traditional councils valid for yet another year.
In Bapong, the Lonmin deal was completed, in part, to get Lonmin to its 26% BEE requirement. The deal became a royalties-for-shares swap in which the community forfeited their percentage of profits for a stake in the company and other incentives.
“(The community) sold everything they had for that,” Boyle said, explaining that the deal also further opened Bapo land to mining.
Vladimir Mogale is a member of the royal family and acts as a spokesperson for the Bapo traditional council. He said shares were yet to pay out at the same level the royalties had.
“Things could be better perhaps if the demand for platinum or the platinum price changes,” Mogale said.
However, according to Mogale, the royalties-for-shares swop was done because estimates show Lonmin will finish mining on Bapo land in eight years.
“We’re looking at something that could sustain us even beyond, even when Lonmin moves,” he said.
Lonmin spokesperson Wendy Tlou explained that the deal included R100 million paid out over five years, equity, a minimum of R5m a year dividends, and procurement benefits.
“The procurement element was critical to the parties agreeing to a deal as it gave the Bapo an opportunity to participate in the Lonmin value chain and for Bapo employment and upskilling opportunities,” Tlou said.
Not only did Lonmin direct R200m of procurement opportunities to the Bapo, but the company also awarded four contracts worth a combined R1.65 billion to companies that Mogale confirmed fell under Bapo Ba Mogale Investments, an investment company linked to the traditional council.
However, those who opposed the deal said the infusion of cash managed by the traditional council, as well as the ability of Bapo Ba Mogale Investments to control massive procurement contracts, opened the community up for further corruption.
Until recently, Lehlohonolo Nthontho, who is unrelated to the royal family, ran Bapo Ba Mogale Investments.
While rumours have circulated for months that Nthontho and the family had fallen into conflict, Mogale confirmed that Nthontho was tendering his resignation.
Disagreements over the deal escalated in the past year, as a group of youths known as “the ambassadors” – alleged by many to be paid by an interested party – violently broke up public meetings.
Cases filed with the police continue without arrests, and a community radio station critical of the Bapo leadership was attacked.
“If there are any other meetings that were not done in the proper way, of course people will come into that meeting and there will be fights,” Mogale said, calling some of the violence “the repercussions of doing these illegal meetings”.
Kgobane, Mafate and other community activists said they had no intention of backing down.
“It’s a matter of upholding the legacy of our great-grandfathers. They had the intelligence to know that land is one of the scarce and valuable resources. They sacrificed a lot to purchase this land, so we cannot sit back and look at our land being exploited,” Kgobane said.
In October, Madonsela revealed that the D-Account – the name for the account holding past royalties paid by Lonmin to the community – at one time held R617m, which had been drawn down to less than R500 000 by 2014.
A June 2014 update to a forensic report commissioned by the public protector found no evidence that the D-Account had ever been audited, but it did find that R80m had already been spent building the royal palace.
From a national level, the Department of Mineral Resources said it could not step in to govern a specific agreement between a miner and a community.
“The department, however, must ensure that the rights of the community are not affected negatively by these contracts,” said Mildred Mnguni, an assistant director at the department.
While the public protector’s report is being finalised, the community are also waiting on concurrent litigation and a much-delayed report regarding the rightful chief of the Bapo. All these facets, Boyle argues, play into a “trilogy” of corruption – including traditional authorities, political elite and mining houses – that is evidenced nearly everywhere mining takes places on communal lands.
Two aspects have already been named in the investigations for the public protector’s forthcoming report – the council and the provincial government – and the TKLB could be poised to further their power over communal land rights. In a January submission on the bill, Kgobane said the TKLB would further entrench that system by not accounting for former government failures and by giving traditional councils “enormous power”.
“They wanted to endorse the powers that they are busy using for corruption,” Kgobane wrote in the submission. “Decision-makers are the community, not traditional leaders.”
Land and Property Rights