David and Goliath: Welgespruit Community goes to the North West High Court over their land claim

In the last two decades, platinum mining has exponentially expanded into communal land in the North West. This mineral rich area, which falls under various tribal authorities including the prominent Bakgatla-ba-Kgafela, hosts one of the world’s largest and oldest platinum producers – Anglo American Platinum’s Union Mine. Another lucrative platinum mine in the area, Pilanesburg Platinum Mine (a subsidiary of Sedibelo Platinum Mines) has tripled in size since it commenced operations in 2008.

The rapid growth of these mining companies is paralleled by the increasing tensions between traditional communities and their traditional leaders on one end, and traditional communities and mining companies on the other.

The powers of traditional leaders have been re-enforced by post-apartheid legislation such as the Traditional Leadership and Governance Framework Act 41 of 2003. Traditional leaders are considered the custodians of community property and as such they are empowered to administer the communal land entrusted to them for the benefit of the whole community. Chiefs thus have the authority to enter into mining contracts with mining companies on behalf of the community and to mediate relations between the community and the mine. However, in most instances the interests of the community members, who are supposed to be the main beneficiaries, are often neglected. In fact, many traditional communities have begun challenging the mining contracts entered into by the chief based on the contention that their forefathers bought the mineral rich farms as private properties that should have been distinguished from the communal or tribal land.

One such community is the Lesethleng Village Community represented by the Land and Housing Unit of Lawyers for Human Rights. The community purchased the farm Wilgespruit (locally referred to as “Modimo Mmalo”) over a century ago in 1919. In spite of being the true purchasers, the community could not be registered as the owners of the land at that time because of the discriminatory racial laws and policies in place during Apartheid. Consequently, the farm was registered in the State’s name, which in turn held it in trust for the Bakgatla-ba-Kgafela tribe – the overarching traditional community which the Lesethleng Village Community forms a part of.

Over the years through successive generations the community used the farm, peacefully and undisturbed, predominantly for crop farming and sometimes livestock farming to sustain their livelihoods. In 2008 through Itereleng Bakgatla Mineral Resources, had acquired mining rights over the farm Wilgespruit. The community continued farming on the land despite this development. However, once IBMR ceded the mining rights to Pilanesberg Platinum Mine (PPM) the mining company rapidly began expanding its operations on the farm to the extent that the villagers were almost driven off their land. In 2014 PPM began fencing off portions of the farm, commenced extensive de-bushing of the vegetation on the farm and excavation of the soil in preparation for mining. This was done in complete disregard of the community’s land rights. However, with the assistance of LHR the community successfully obtained a court order in September 2015 against the mine to halt operations and restore possession of the farm to the community. This was only the tip of the ice-berg.

The Lesetlheng Village Community is now embroiled in yet another “David-and-Goliath” court battle with the mine which has since brought an eviction application against it. The mine bases its application on the claim that the informal land rights (if any) held by the community over the farm were extinguished when the Bakgatla-ba-Kgafela tribe in 2008 resolved to enter into a surface lease agreement with IBMR. The mine argues that in any case, its rights as the mining right holder take precedence over the informal land right holder. The community, on the other hand, challenges the validity of the mining right that was granted over the farm in the first instance and subsequently ceded to PPM on the basis that the community members whose forefathers actually bought the farm were not consulted as the owners. The community declares that they are the true owners of the farm and therefore cannot be evicted by the mine.

If PPM had their way in 2015 and managed to “push” the farmers of the land 40 families would have recived R15 000 (fifteen thousand) each as compensation, while the mine stands to benefit millions if not billions of rands from the mining. Farmers of the adjacent farm, where PPM is now rounding up their mining activities, never received compensation and the similar fate was staring the Wilgespruit farmers / Lesthleng community in the face. It is unknown what deal exsists between PPM and the tradional leader of the Bakgatla – ba Kgafela.

The Lesetlheng Village Community has been recognised over the years by members of the broader tribe as the owners of the farm. At the time the farm was purchased it was understood that it was reserved for the exclusive control, use and occupation of the Lesethleng Village Community and as such it should not have been dealt with as part of the communal farms held by the broader Bakgatla-ba-Kgafela tribe. The details regarding the names of the contributing members, the amounts they each paid and how the farm was to be divided amongst them are all recorded in an old book which captures the history of the community.

The first eviction application is due to be heard in the North West High Court on Thursday, 25 August 2016. The bottom line of this case is that the Lesetlheng Village Community paid for their land and if it was not for the discriminatory laws of apartheid they would already be listed on the title deed. The continued struggle for the recognition of land rights faced by many rural communities around South Africa exposes the lack of post-apartheid legislation that effectively protects these vulnerable communities. If any mining should take place on the farm the people of Lesetlheng should be recognised as the true owners and the rightful beneficiaries.

Written by: Louise Du Plessis, Land and Housing Program Manager, Lawyers for Human Rights