The public protector’s recent report on the disappearance of the Bapo Ba Mogale’s millions confirmed what many had alleged for years: that the Bapo had been stripped of their wealth while government and traditional watchdogs looked the other way. But because it was published at the same time as several other issues deemed more sensational, the report has had little airtime.
The public protector found that more than R600 million is missing from the coffers of a poor rural community based between Brits and Rustenburg, and named the culprits as the North West department of traditional affairs and the so-called Bapo Administration.
Despite rhetoric on the need for radical socio-economic transformation, neither the media nor government appear to care about a provincial government department and a legally precarious traditional authority stealing large amounts of money from one of the few black landholding communities in South Africa. The Bapo people’s platinum-rich land in Marikana, which is mined by Lonmin, has proved to be a curse and not a boon.
The report finds that the conduct of the head of the department of local government and traditional affairs in North West and the Bapo Administration amounts to maladministration and improper conduct. It finds that between them they failed to account for hundreds of millions of rand.
For example, more than R115m was spent on a royal palace for the late Kgosi Bob Mogale, whose legitimacy was and remains deeply disputed. It says that “as a result of the actions of the department and the Bapo Administration the community lost out on additional decent housing being built, proper healthcare facilities, food, water and social security, employment opportunities, more bursaries for deserving students, infrastructure, employment projects, poverty alleviation, etc”.
One would expect a volume of public voices of disapproval in support of a rural community which is trying to assert its rights against corruption and exploitation, but none so far.
Various complaints, including about money disappearing from the community’s provincially administered D-account, were lodged with the public protector in early 2012.
However, former Premier Thandi Modise simply refused to co-operate with former Public Protector Thuli Madonsela’s probe into the Bapo finances. Madonsela warned Modise of the growing despair of the community in August 2013, and the continued bleeding away of community finances. Modise left office in May 2014 and her successor Supra Mahumapelo also failed to provide any financial records to Madonsela until July 2016, leaving little time before her term expired.
Until 2014, most of the maladministration that the report lists is attributed to administrators whom the province imposed on the community, one of whom paid himself R719534 from community funds without any approval. The extraordinary wasteful activities of the administrators were debited to the community’s account, made up largely of royalties paid for mining on its land.
For example, a serious lack of financial controls in a poverty alleviation programme resulted in the expenditure of R61.8m that cannot be accounted for, with pending allegations of fraud against some of the individuals involved.
The Bapo Traditional Authority, in its response to the finding against it, said it should not be held liable for the amounts spent by provincially imposed administrators.
They raise a good point. The administrators were imposed and supervised by the North West department of traditional affairs, not by the community.
The last administrator left in 2014, and it is after that that things got really rough and increasingly violent for those who objected.
The events that unfolded between 2014 and the publication of the public protector’s report are the responsibility of the Bapo Administration and the department of traditional affairs, under whose oversight they operated.
In 2014, Bapo and Lonmin Plc concluded a broad-based socio-economic empowerment deal in terms of which Bapo swapped future Lonmin mining royalties for shares in Lonmin. Those who objected to the deal were thrown out. The value of Lonmin’s shares collapsed soon after. At the time various community leaders were sceptical of the proposed deal, especially as its terms were neither explained, nor made public.
The report describes that part of the deal was that Lonmin would pay R20m a year to Bapo ba Mogale Investments Non-Profit Company (BBMI) over a five-year period. BBMI was also granted preferential status to supply goods and services to Lonmin worth at least R200m within 18 months of the deal.
The report names Lehlohonolo Nthontho (chief executive), Oupa Mothibi (chief operating officer), Kolobe Mashala (chief financial officer) and Dimakatso Lekhutlile (company secretary). None of this money was deposited into the D account – it all went to the BBMI.
The BBMI has refused to provide financial statements to the public protector.
The report confirms activists’ worst fears about the deal. It instructs the premier to approach the Special Investigating Unit to conduct a forensic investigation into whether there was a properly convened community resolution to support the deal. The report also says that the ownership of BBMI and the selection of directors must be investigated.
It further calls for a forensic investigation into whether traditional authority and royal family members benefit from BBMI and whether there is a conflict of interest between their role as traditional representatives and beneficiaries of BBMI.
Some of the complainants who lodged the initial complaint with the public protector are upset about the gap between what Madonsela briefed them about before she left office and what Mkhwebane has delivered.
The report states that it will only deal with issues relating to the D account, while the previous public protector had actually discussed issues around land leases for mining on certain farms, and a land audit. Madonsela also promised that the various financial and forensic audits conducted during the investigation would be made public. This has not happened.
The report also glosses over serious ongoing disputes about traditional leadership within the Bapo royal family, which have deepened tensions within the community and swallowed large sums of Bapo funds.
By laying blame on the so-called “Bapo Administration”, the report blurs the lines of responsibility between the administrators appointed by government, the Bapo Ba Mogale royal family and the traditional council or authority that is supposed to comply with various statutory requirements. All of these bodies seem to have contributed to the current state of Bapo affairs, but the report conceals this by referring to them with one name.
By hiding the role of the traditional council, the report paves the way for an upcoming amendment to the Traditional Leadership and Governance Framework Act of 2003. The 2017 Amendment Bill tries to give new life to traditional councils that have failed to meet the standards required by law, which include elected and women membership, financial controls, audited statements and regular reporting.
For the Bapo, this means that the same body that was found guilty of maladministration of their funds will be authorised to represent them going forward. If the traditional authority continues to flout its legal duties, the Amendment Bill removes the legal consequence of invalidity.
The disappointing fact about the public protector’s report is that it relies on the very same institutions which are responsible for the wrongs committed against Bapo to remedy those wrongs.
Instead of holding the responsible institutions directly accountable, the premier is given the power to implement many of the public protector’s findings
After five years of waiting for the report, the community remains powerless, while the premier whose office colluded in the theft of their millions holds all the cards.
This article was first published in The Star on 03 August 2017