Stealing the Crust III: Universal lessons from a local mining fraud

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In late August 2019, mere days before mass violence erupted in central Johannesburg, the Baloyi Commission released its report into the corruption that had been plaguing the Bakgatla Ba Kgafela, an indigenous community of 350,000, since at least 1998.

The looting of their resources by mining conglomerates and its own government-approved chief held lessons that informed the rising anger not just in this country, but in Africa and the world at large. It also held lessons for the fast-approaching time when conflict over food and water would be the norm.

(See part one here and part two here)

I.

There was nothing new about the statement. As the black smoke billowed over downtown Johannesburg, reminding the residents of the suburbs that the veneer of civilisation is razor-thin, the voice on the radio said it all. There was no name to go with the voice, which was just as well, because it was a statement that could have been made in any era, by any human being, in any state or kingdom on the verge of collapse.

“We are looting because we are hungry.”

The next day, as if to verify its timelessness and the fact that human nature doesn’t change, the statement was repeated by a merchant, a man who was hawking the food that the looters were after.

“They’re hungry,” the merchant told a pair of reporters from Daily Maverick, adding that the situation might get better when the government “stopped stealing” and turned its attention towards creating jobs for the youth. A second merchant attributed the violence to xenophobia, which aligned with another report in Daily Maverick about the warnings that the migrant traders had received.

And so, as per the journalists on the ground on 3 September 2019, it appeared that the attacks were indiscriminate, targeting both locals and foreigners in an act of mass violence that evoked the root causes of bloodshed anywhere at any time — anger, despair, a sense of nothing to lose.

Out in the ether, there were more clues as to the universal nature of the event. On 2 September, just as the first drops of blood were being spilled in South Africa, a consummate truth-teller by the name of Chris Hedges published a piece in the United States. The piece, titled “The Last Act of the Human Comedy”, contained many sentences that might have applied to the rising anger levels at home.

“The decay and abandonment of a once-efficient infrastructure” was one such sentence, as was “[the] implosion of the institutions, from education to diplomacy, that sustain a functioning state.”

Then, even further out beyond the confines of geography and context, there was this:

There is one human story. Dressed in new clothing and using new tools, we endlessly relive it. If we still read philosophy, literature, history, poetry and theology we would not be surprised that greed, hedonism and hubris have easily defeated empathy and reason. But because we do not, because we spend hours each day getting little bursts of dopamine from electronic screens, we think we are unique in human existence. We are unable to see that the climate conditions that allowed civilisations to flourish during the last 10,000 years will soon be replaced by a savage struggle to survive.”

Hedges, a dedicated rationalist and a winner of the Pulitzer Prize, was suggesting that while the human game was exactly the same, it was also completely different. He was further suggesting that our avarice had changed the game to an extent we were unwilling to admit — in a world of endless droughts, runaway crops failures and transcontinental Day Zeroes, he was pointing out, our savagery was about to be reduced to fights over food and water.

To dig deeper into how this self-evident truth pertained to the violence in South Africa in early September, one didn’t need to look far — although one did need to look beyond the obvious. The week before, on 27 August 2019, in a 200-page report mostly ignored by the local media, an emblematic reason for the misery was on full display.

Called the Baloyi Commission Report, it contained the findings of the official inquest into the corruption that had been plaguing the Bakgatla Ba Kgafela, an indigenous community of 350,000 Tswana speakers in North West Province, since at least 1998. The report was close to Daily Maverick’s heart, given that we had dedicated many months, two investigative features and over 10,000 words to the issue. In the final analysis, the report could be summed up in another axiomatic sentence of Hedges:

The looting of a beleaguered populace by the rich.”

But journalism demands specificity, and in this case, the specifics had to do with what we suggested at the time was the largest state-sanctioned, corporate-sponsored fraud in the history of Big Mining in democratic South Africa.

II. 

As outlined in our feature of November 2018, a mining conglomerate called Pallinghurst Resources was the primary enabler in the R25 billion fraud that Kgosi Nyalala Pilane, the disputed chief of the Bakgatla Ba Kgafela, delivered upon his people. In our first feature, published in February 2018, we had already laid out the series of transactions through which the conglomerate — under the direction of its chairman Brian Gilbertson — acquired three adjacent platinum deposits on the western limb of the Bushveld Igneous Complex.

To briefly recap, a joint venture was set up between Pallinghurst and the Bakgatla Ba Kgafela Traditional Authority, the shareholders and investors were registered in tax havens like Guernsey and Mauritius, and no attempt was made to seek the consent of the community members who were living on the land under which the deposits sat.

The Baloyi Commission Report did not focus on the part played by Pallinghurst Resources, mostly because the commission itself was not set up to go after mining houses. In this sense, the part of tax havens in fuelling global inequality and environmental degradation was also wide of the commission’s mark.

Neither did the report focus in any detail on the role of Werksmans Attorneys and Rand Merchant Bank in facilitating an earlier deal between Kgosi Pilane and Anglo Platinum, which had saddled the 350,000 ordinary members of the Bakgatla Ba Kgafela with R750 million in debt.

For its part, in December 2018, Anglo Platinum had published an internal report refuting the allegations in the Daily Maverick articles. “A detailed review of company records in relation to the dealings with the Bakgatla Ba Kgafela Traditional Authorityand Kgosi Pilane has shown all dealings to be above board and lawful,” the mining house had stated.

Which may have been the case, except that our core concern wasn’t with the legality of the deals between the chief and the various corporations. Our concern, rather, was with how the law was being manipulated or ignored so that the resources could be extracted without considering the rights of 350,000 mostly unemployed South Africans.

Here, the Baloyi Commission Report was clear. On page 82, it found that Kgosi Pilane had failed to provide effective leadership to the community; that he had not led the traditional council in terms of the provisions of the Northwest Leadership and Governance Act; and that, along with his nephew Kagiso Baba Pilane, he had administered the commercial activities and assets of the Bakgatla Ba Kgafela without informing or involving the people he was supposed to represent.

On page 180, the report further found that Kgosi Pilane’s traditional council had neglected to prepare proper financial statements for its entities; that it had not submitted accounts for audit to the Auditor General; that it was in breach of the Companies Act and the King Codes; and that it did not even have the necessary skills to employ competent professionals to give it advice.

But the most important part of the report was on page 94, where a Constitutional Court judgment that had fundamentally altered the power balance between mining companies and communities was cited. Handed down in late October 2018, this judgment had raised the Interim Protection of Informal Land Rights Act (IPILRA), which had been passed in 1996 to safeguard the security of tenure of the residents of the former Bantustans, to the status of the common law.

Significantly, the first respondent in the cited matter was an entity called Itereleng Bakgatla Mineral Resources (Pty) Limited, which — as outlined by Daily Maverick in February 2018 — had been set up as the “exclusive vehicle” to house the Bakgatla’s platinum interests as part of the joint venture with Pallinghurst Resources.

In the matter Maledu and Others v ltereleng Bakgatla Mineral Resources (Pty) Limited and Another,” the Baloyi Commission Report noted, “the court accepted that IPILRA applies to land of Lesetlheng village which comprises the farms Wilgespruit, Legkraal, Rooderand and Koedoesfontein, held in trust by the Minister on behalf of the community. Accordingly, decisions concerning land must be taken in accordance with the principles of customary law as we have set out, and at a minimum comply with the requirements of IPILRA, namely that a minimum of 50% of the affected land rights holders consent to the decision.” 

In other words, government and their private-sector mining partners had been ignoring this short piece of legislation for more than two decades, dealing with communities by employing consultants and paying off chiefs, but now the game was up. As pointed out by the Land Access Movement of South Africa (LAMOSA) in a newsletter sent out to rural communities on 27 August 2019, the Baloyi Commission Report highlighted the fact that residents of the former Bantustans no longer had to“bow to the capture of power by elites in a supposed centre.”

These centres were created by colonial and apartheid laws,” added LAMOSA, “such as the Native Administration Act of 1927 [and] the Bantu Tribal Authorities Act of 1951, and now have an afterlife under the Traditional Leadership and Governance Framework Act of 2003 and the Traditional and Khoi-San Leadership Bill of 2018.”

In terms of the latter, known for short as the TKLB, Daily Maverick had noted in an investigation published in March 2019 that the bill was likely being used as cover for a land-grab attempt — a mooted “Disney playground” deal between King Ndamase of Western Pondoland and a shady Chinese outfit called Honglin Investments — in the former Bantustan of Transkei.

On 27 February 2019, we’d pointed out, the day after President Cyril Ramaphosa had made good on his promise to approve the bill, there was a picket at the gates of Parliament. At the protest, a coalition named Stop The Bantustan Bill said this:

Clause 24 of the TKLB would give chiefs and their councils the power to sign over your land, including your family graves, your fields and even your homes, to mining companies, large farms, developers and casinos. They will be able to do this without asking your opinion, let alone your permission. They will make millions while you lose your home.”

And so now, in the wording of the Baloyi Commission Report, it was being implied — if not directly stated — that the TKLB was a downright regressive and illegal piece of mooted legislation, a cynical attempt to undo the gains of the Maledu judgment that was as dangerous as it was unconstitutional. What remained, of course, was the perennial question:

Would government care?

III.

The lootings of Shoprite malls in Nigeria are not retaliations for the xenophobic attacks on Nigerians in South Africa,” the Nigerian novelist Sefi Atta informed her social media followers on 4 September 2019, “They are attacks on the fallacy that upward mobility is possible for the masses. The revolution may well begin in malls.”

It was a trenchant observation, one reflected in the following statement by Chris Hedges in his seminal piece of 2 September:

The longer we publicly deny the bleak reality before us and privately cope with our existential dread and pain, the more crippling despair becomes.”

This global impetus towards action — in the former case against social injustice; in the latter against climate injustice — came together in an event coordinated by the United Nations that kicked off in Kenya on 27 August, the same day that the Baloyi Commission Report was released in South Africa. Called, somewhat challengingly, the first meeting of the Open-ended Working Group on the Post-2020 Global Biodiversity Framework, its aim was to begin the negotiating process for the crucial UN Biodiversity Conference in 2020.

Crucial why? Simply put, because ecosystem collapse, as identified by a horrific UN report compiled by the world’s leading natural scientists and published in May 2019, was now widely recognised as an existential threat to humanity on par with climate collapse.

A key component of the first day of the working group was the opening statement by the International Indigenous Forum on Biodiversity, an agglomeration of indigenous communities from every region on Earth. Presented by Lucy Mulenkei of Kenya’s Maasai, the statement was a blunt appraisal of the facts.

“We are at a very critical moment of global transition,” recited Mulenkei, “demanding the best of ourselves and the best of all other actors towards restoring balance in our relationships with nature. For indigenous people, this means an abiding self-determination and renewal of our spiritual and cultural values to defend living nature, sacred spaces and our territories from destruction.”

In an interview with Daily Maverick, Mulenkei was quick to point out that the abovementioned UN biodiversity report had identified lands owned, managed, used or occupied by indigenous communities as totaling “approximately 35% of formal protected areas and approximately 35% of all remaining terrestrial areas with very low human intervention.”

She mentioned the Amazon, where indigenous tribes were basically at war with the mining and agribusiness interests that were funding the regime of Brazilian strongman Jair Bolsonaro. In her own corner of Africa, she said, indigenous communities such as the Maasai and Samburu were likewise being pushed off their ancestral lands, to make way for game parks and government-backed developments.

“Some of those communities have also sold their land,” she added, “which has become a lesson for others, who have seen that if they do the same thing there will be no story for them to tell, except in books.”

The parallels with the Bakgatla Ba Kgafela in South Africa were obvious, and for Mulenkei the way through was for the communities themselves to first understand, and then to demand, their rights. As in South Africa, there were “beautiful laws” in Kenya that protected the traditional custodians of the land — the problem arose when it came to staring down power.

This, of course, was something that was happening spontaneously — in the peaceful demonstrations against gender violence in Cape Town that were met with the state’s water cannons; in the far less than peaceful attacks on self and other in downtown Johannesburg that were met with decidedly little resistance by the state; and in the daily global protests against social injustice, climate injustice and every other form of injustice.

If the Johannesburg rioters did not deserve inclusion in this category, it was because their challenge to the status quo was desperately and criminally misdirected, not because their misery was illegitimate or without cause. In this sense, their attendant anger was no different from the anger of the white nationalist right in Western Europe or North America — it found its expression in the same caste of ancient, banal, self-defeating hatred.

Chris Hedges, like Lucy Mulenkei and many others around the world who had woken up to the actual unprecedented hazard on humanity’s immediate horizon, was defining the task in way more original and subtle terms.

Resistance grounded in action is its own raison d’être,” wrote Hedges. “It is catharsis. It brings us into a community with others who are coping with the darkness by naming it but refusing to submit to it. And in that act of resistance, we find emotional wholeness, genuine hope and even euphoria, if not an ultimate victory.”

In the coming battle, he was saying, the stakes would be for keeps — and the winners would not necessarily be those standing at the end; they would be those who fell with their eyes, and their hearts, wide open. 

This article first appeared in Daily Maverick on 8 September 2019.

opinion-grey Kevin Bloom is a writer and journalist.
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