North West Premier Supra Mahumapelo has done little to find out what has happened to mining funds. Rural groups across the country face huge legal and logistical obstacles when they try to hold traditional leaders and the government to account for mining deals on their land.
PUBLIC Protector Thuli Madonsela’s report-back on Monday to the Bapo Ba Mogale community of North West could be a ray of light in their long search for the millions of rand in mining royalties that are missing from provincial coffers.
Her staff have cautioned that she will be there only to explain — before she leaves office in October — what she has been able to achieve so far. It will be up to her successor to give the full accounting they hope for about the royalties owed to them for more than 40 years of Lonmin mining on their land, which includes Marikana.
Rural communities across SA face massive odds when they try to hold traditional leaders and the government to account for mining deals on their land. Contrived versions of custom, the courts, the law, and logistical challenges are just some of the obstacles in their way.
North West Premier Supra Mahumapelo promised soon after his appointment in May 2014 to find out what had happened to the funds held on behalf of the Bapo and more than 100 other traditional communities in the province. Nothing has come of that. Instead, he recently rejected the recommendations of a government commission that said several traditional leaders, including some at the heart of controversial mining deals in the province, should be removed.
While Mahumapelo delays the removal of these favoured chiefs, Cooperative Governance and Traditional Affairs Minister Desmond van Rooyen is shepherding a bill through Parliament that would empower traditional leaders to represent their “tribes” in investment deals without requiring any consultation whatsoever with the people whose futures — and land — are at stake.
Parliament has stalled all discussion of the Traditional and Khoi-San Leadership Bill, probably because rural voters would rebel if they were to be reminded before the local government elections of laws that lock them into the status of tribal subjects.
Mahumapelo has rejected the recommendations of a commission that was established in terms of the Traditional Leadership and Governance Framework Act to probe the legitimacy of the disputed tribal boundaries, and of the traditional leaders inherited from apartheid.
The commission was designed as a safety valve to protect people from possible unintended consequences of the choice to entrench the pre-existing boundaries and chief appointments inherited from the National Party and homeland governments.
The scale of unintended consequences and their effect on the most basic freedoms of rural people could hardly have been foreseen when the Traditional Leadership and Governance Framework Act was enacted in 2003. The already shaky tribal edifice and the mining accounts inherited from Bophuthatswana have succumbed to the greed generated by the platinum boom.
Instead of paying attention to increasingly desperate petitions from the rural people whose land is being mined, the provincial government has slipped into the shoes of former Bophuthatswana Bantustan leader Lucas Mangope.
One of the traditional leaders whom the commission sought to depose is Kgosi Nyalala Pilane of the Bakgatla Ba Kgafela. There have been allegations that he has failed to account for at least R300m from opaque mining deals on Bakgatla land.
Pilane was found guilty of fraud and corruption in 2008, after charges were laid by community members. He was subsequently acquitted on appeal, though the judgment acknowledged: “Much criticism can be levelled against the manner in which (Nyalala Pilane), as the person in charge of the tribes’ money, administered it. There is great suspicion that funds may have been misappropriated in the process.”
SINCE that appeal in 2010, Pilane has been at the centre of two cases in the Constitutional Court. The first resulted from him going to court to obtain an interdict preventing residents from holding meetings without his approval.
The main applicant in that case was Mmuthi Pilane, whose family had long challenged Nyalala Pilane’s actions undermining the consultation requirements of customary law.
The second was in relation to who should own restitution land claimed by the community. Nyalala Pilane rejected the community’s decision that the land should be owned by an elected communal property association, and insisted it should be held in trust by him.
In both cases the Constitutional Court upheld the rights of community members, and rejected Nyalala Pilane’s interpretation of the scope of his power as kgosi to override community objections.
At the same time as the North West commission recommended that Pilane be deposed as senior traditional leader, they recommended that Mmuthi Nyalala Pilane be recognised as the legitimate headman of one of the 32 Bakgatla villages, Motlhabe. Mahumapelo chose to reject this recommendation too, opting instead to establish yet another commission of inquiry under a different law, despite the 10-year wait for the first commission’s report.
Mmuthi Pilane was recently arrested under extremely peculiar circumstances on a charge of kidnapping. He was released on bail several days later, but only on conditions including that he may not hold or attend community meetings in the Bakgatla area.
Despite having won an important victory in the Constitutional Court about the right of community members to hold meetings, and to hold traditional leaders to account, he is back at square one.
Court judgments, including judgments of the Constitutional Court, have very little power to protect basic rights when the premier of a province can, with impunity, override the findings of a commission mandated by the very legislation that provides traditional leaders with their official status.
Mahumapelo is not the first premier of the North West to ignore the increasingly desperate actions of rural groups struggling to hold traditional leaders to account for mining revenue generated from their land.
The book Land, Chiefs, Mining by Andrew Manson and Bernard Mbenga cites many similar examples of thwarted attempts by communities in the North West to enforce accountability in the face of provincial government intransigence.
Court judgments, including judgments of the Constitutional Court, have very little power to protect basic rights when the premier of a province can, with impunity, override the findings of a commission
Responsibility for the structural failures of accountability we see in North West mining areas lies only partially with the individual traditional leaders who have chosen to take the gap.
The primary responsibility must lie with the provincial government’s failure to uphold and enforce the law.
The old Bophuthatswana law governing traditional leaders and the new North West Act that replaced it in 2005 contain virtually identical provisions requiring that all revenue accruing to traditional communities “from any source whatsoever” must be deposited in tribal accounts held by the premier, and audited annually by the auditor-general. When we contacted the auditor-general’s office about its failure to audit tribal accounts during the multibillion-rand platinum boom of the past decade, we were told that there was nothing the auditor-general could do if the provincial government refused to make the tribal books of account available.
THIS is an ominous state of affairs, given the still unresolved scandal about the millions of rand missing from the provincial accounts that were established during Mangope’s time. A string of investigations has been launched to uncover what happened to the royalties that should have been paid to poor communities in respect of chrome and platinum mining on their land, including probes by the North West legislature’s standing committee on public accounts and the public protector.
The legitimacy of the Bapo chief, and the legal standing of the traditional council are fiercely disputed. It is widely known that the commission found against them, but all copies of its report are “lost” — or so the premier claims.
Mahumapelo’s decision to reject the commission’s findings and protect controversial traditional leaders who are sitting on multibillion-rand deals buys time not only for them, but also for the provincial government to explain why the law has been flouted and no tribal accounts in North West audited since 1994.
It also buys time for Parliament to protect the official status of traditional councils that have failed to comply with the requirement that 40% of members should be elected and that one-third of all members should be women.
The Traditional Leadership and Governance Framework Act deemed only those tribal authorities that complied with the election and gender requirements to be validly constituted traditional councils.
The Traditional and Khoi-San Leadership Bill aims to soften the consequences for noncompliance.
It would require only that the government should take steps to remedy the problem, much as Mahumapelo has taken steps to deal with the commission’s unpalatable findings. The premier’s choice illustrates that even someone who fought a case right up to the Constitutional Court and eventually won can find himself once again barred from calling or attending community meetings within the disputed tribal boundaries that both the act and the bill re-entrench.
It adds insult to injury for the Bapo community. Their money is gone, and they remain locked under the control of a man whom the commission found is not their rightful leader.
This article first appeared in Business Day, 20 July 2016