That victory came at great cost. Four people were killed in the conflict, most recently in March 2016 when activist leader Sikhosiphi “Bazooka” Rhadebe was shot and killed by attackers posing as police. The struggle has also left the com-munity deeply divided between the minority who were set to gain from a close relationship with the proposed miner and the majority who wanted nothing to do with mining.
Mineral Resources Commodities (MRC), the Australian majority owner of Transworld Energy and Mineral Resources, cited the persistent resistance of the community as the reason it was abandoning its application for a mining right in Xolobeni. When MRC pulled out, it di-vested its interest to a local company set up in anticipation of sharing the project. Whether another consortium will try to revive the project is not immediately clear.
The Xolobeni case made world headlines because of the violence against the community and the unique environmental wealth of the region. The internationally acclaimed documentary film Shorebreak was a game-changer for the Amadiba people. But with an average of 11 public protests a day to choose from, South Africa’s media tend to report on those that happen nearest to their own newsrooms – or that produce the most spectacular images. Against competition at this level, rural people fighting for a voice on mining that affects their land seldom make the front pages.
As the mining industry’s pursuit of new resources shifts increasingly towards rural areas such as the Wild Coast, politically connected elites are using a mix of money, political influence, legislation and intimidation to exclude local people from the benefits of mining and to silence their protests.
The interlocking laws and regulations that govern mining do require a limited level of consultation with communities that will be affected by prospecting and extraction. But when that consultation is inadequate or does not happen, when the wrong people are asked, or when community views are ignored, the onus falls on those who have been wronged to tackle the mining juggernaut.
Community members who dare to demand a seat at the negotiating table face a politically connected triumvirate of business, government and traditional leaders who together control mining in rural areas. Their arsenal includes deep corporate pockets, distorted interpretations of custom that position traditional leaders as autocrats, increasingly oppressive legislation, and violence.
As the potential earnings from mines in these remote areas increases, the space for ordinary people to speak, and to protest where necessary, is shrinking.
Entrenching Apartheid’s Footprint through Legislation
Twenty-two years after the end of white rule, South Africa has failed to erase the spatial footprint of apartheid. Around 18 million of the country’s 54 million people still live within the boundaries of the 10 so-called “homelands” to which most black people were confined. They are the poorest people in the country. They are least likely to find work. They have the weakest schools, the least effective clinics and the hardest road out of poverty.
After 1994, South Africa’s first democratic government tried to halt and then to reverse the destructive legacy of colonial and apartheid rule with a new Constitution and a flurry of legislation. The task was huge and urgent. One of the shortest and least equivocal acts of the new parliament sought to prevent further dispossession of rights to customary land pending the adoption of a comprehensive land policy. That policy is still outstanding.
The three-page Interim Protection of Informal Land Rights Act (IPILRA 1996) uniquely allows people to refuse to be deprived of their land rights, except by expropriation. It recognises “beneficial occupation” as a basis of a right in land. Any decision to dispose of a right in land owned by a community must be endorsed at a public meeting by a majority of all the rights holders – not just a majority of those in attendance.
After these early efforts to dismantle the apartheid infrastructure, the government has more recently entrenched the former homeland borders, with chiefs exercising extraordinary power within them. The fulcrum of this reversal is the Traditional Leadership and Governance Framework Act (TLGFA) of 2003, which, 11 years after the end of white rule, reaffirmed the “tribal” boundaries imposed under the Bantu Authorities Act of 1951, a cornerstone law of apartheid. The TLGFA recognised traditional councils and gave them powers over all the people living within their territory.
Unelected traditional leaders preside over these councils and appoint 60 percent of their members. The remaining members must be elected by their communities, but some provinces have yet to hold these elections. In North West Province, two elected members of the Bapo Ba Mogale council were suspended by the unelected majority in 2014 when they demanded a higher level of accountability for community funds and insisted that people should be properly consulted about decisions affecting their land.
New legislation that is now in the pipe-line will further dilute rights in land, including the right to consultation. This includes the Traditional and Khoi-San Leadership Bill (TKLB). In its current form, it again entrenches the homeland boundaries and proposes that traditional authorities should have apparently unlimited rights to transact on communal land. It also pro-poses to drop any obligation to consult the people who will be affected.
In other words, the institutions of traditional leadership, which should defend the interests of people living on communal land, have been handed autocratic powers in post-liberation policies and laws and seduced by the promise of personal wealth through mining. The former “homeland” of Bophuthatswana is a case in point. Most of the world’s richest platinum field, the fabled Merensky Reef, lies beneath its soil in what is now North West Province. The region hosts some of the biggest mining companies listed on the London Stock Exchange.
The Bafokeng community, often referred to as “the richest tribe”, boasts a ZAR41 billion investment portfolio, built from mining revenue on their land. In reality, this wealth is held and enjoyed by an elite minority, with 63 percent of the people in this province left to survive on a monthly income below ZAR604 (about USD40). Royal Bafokeng Holdings may refer to community members as “shareholders”, but they cannot access their own share of that communal wealth for any personal purpose, such as to respond to a medical crisis in the family. The earth of this former homeland may be rich, but the people who live on it are not.
The fact that the accessible remainder of South Africa’s mineral wealth, valued at an eye-watering USD2.5 trillion, lies mainly within the boundaries of these former homelands has raised the stakes for every-one who can claim, buy or just usurp land rights.
The diversion of what should be enough for everyone into the pockets of an elite minority has ignited years of simmering anger at the continued marginalisation of the rural poor. Although the odds are stacked against them, an increasing number of communities are joining with like-minded grassroots formations and non-governmental organisations (NGOs) to resist the elite capture of the revenue and opportunity that should be theirs.
No Money, No Mobilising
Apart from the competition for attention among so many legitimate needs in a country recovering from the destructive effects of apartheid, the rural location of most mining operations makes mobilisation especially difficult. The Mapela in Mokopane, Limpopo Province, for example, live in 42 villages up to 30 kilometres apart. They cannot walk to a meeting place, nor can they afford taxi fares.
Mobile phones should offer an alternative for planning meetings, but the cost of net-working a dozen community organizers for a 30-minute conference call – around USD 15 – is prohibitive for people living below almost every poverty line. Mobilising to fight for a bigger slice of the platinum pie, or even just to know how big the pie actually is, costs more than they can afford.
From Xolobeni on the southern coast to Mapela in the far north, people are standing up to the mining juggernaut and demanding, in the words of the People’s Mining Charter adopted by communities in June, “Nothing about us without us”.
The courts are too costly for communities on their own. Companies and traditional leaders can always outspend them. The Bakgatla Ba Kgafela Traditional Council paid just one lawyer ZAR49 million over three years, mainly to fight community attempts to find out where their mining revenue went.
The cost of equipment, even smart phones, the bandwidth required, and the training needed to get community members involved through social media platforms means there is a long way to go before rural community voices are noticed by main-stream media and, as a result, by policymakers or legislators.
Violence and Divided Communities
Xolobeni is just one of many mining-affected communities hit by violence. The Land & Accountability Research Centre (LARC) at the University of Cape Town has documented multiple attacks on people and their property in North West Province, Limpopo and KwaZulu-Natal. The police massacre of 34 mine workers during a wage strike at Marikana in August 2012 is an example of the collusion between elites to silence those who bear the brunt of their race for extreme wealth. A subsequent official enquiry revealed that corporate and government actors colluded to supress legitimate labour activists.
Communities that want to hold mining companies to account have to interrogate highly technical documents: a task that is beyond the means of any private constituency. Environmental impact assessments, which take years of specialist work to pre-pare, must be challenged within a period of weeks. The deals struck between miners and the government are equally dense, and key elements often are withheld.
In 2014, an opaque deal between Lon-min Plc, the department of rural development and land reform and the Bapo Ba Mogale, a community of about 40 000 people in North West Province, swopped the community’s existing 7.5 percent share of the promising Pandora platinum-mining joint venture and their right, protected by the Mineral and Petroleum Resources Development Act (MPRDA), to a 12 per-cent royalty on platinum profits from their land and the surface rights to that land, for ZAR640 million in cash and equity.10 Two years later, affected landholders still have not been allowed to see the documents that detail the deal’s provisions.
With the help of the overstretched Legal Resources Centre, the pro bono division of a major law firm in Cape Town and LARC, two community-based organisations (CBOs) launched an application in 2015 to review the decision-making processes that led to the deal. It is another uneven battle. Lon-min has employed many top-flight lawyers and the Traditional Council is paying its own legal bills from the very funds the community seeks to protect. The CBOs have to beg and borrow just to be able to pull their litigation committee together for a meeting. A year after the case was launched, the applicants have only recently received copies of the transaction documents – and then only after signing confidentiality agreements.
The laws that govern mining rights introduce highly technical requirements, but none offer communities assistance in evaluating or challenging the interpretations of investors and developers who want their land.
The MPRDA, for example, requires mining companies to develop and implement social and labour plans (SLPs) to support both their workers and host communities. Although these plans are supposed to be about them, members of those communities routinely are refused sight of them. Communities first have to fight for access to the plans themselves and then they have to fight – and possibly litigate – to find out what was actually done.
An extensive study by the Centre for Applied Legal Studies at the University of the Witwatersrand, which was released in May 2016, found that communities affected by mining are not consulted about these SLPs and most of the promises made are neither monitored nor kept.
Mining companies allege that government departments insist they deal only with traditional leaders and their largely appointed traditional councils, although this is not supported by any law or policy. Communities must work with civil society partners to prove and claim their customary, common and statutory rights to be consulted and not merely represented by leaders whose status they dispute.
Colonialism and apartheid deliberately confined black people to the 13 percent of South Africa that white people did not want. Now that this land has been found to hold most of the country’s remaining mineral treasure, wealthy and politically connected elites want access to it on the least onerous terms they can impose. They rely on the law to block avenues for dissent, on the state to enforce those laws and on cynically empowered traditional leaders to insulate them from popular rage.
Rural people are fighting back. It is their houses that are cracked by the blasting, their children who become ill from the dust, their perennial water sources that have dried up or been poisoned and their grazing and cropping land that is being dug up. From Xolobeni on the southern coast to Mapela in the far north, people are standing up to the mining juggernaut and demanding, in the words of the People’s Mining Charter adopted by communities in June, “Nothing about us without us”.
The response from government has so far leaned in favour of the corporate constituency, which offers gifts, empowerment shares and sometimes police protection, and their compliant partners. The Xolobeni story shows, however, that this will not be enough. Eventually, the people will have to be heard.