Black Friday at Monday's Corner

Published by MAC on 2006-06-25

Black Friday at Monday's Corner

by Roger Moody / Nostromo Research

25th June 2006

Exclusive to Mines and Communities

Forty years ago to this month, seven hundred school students were slaughtered by South African police in the black township of Soweto. The young people had gathered peacefully on the morning of June 16 1976 to demand abolition of compulsory learning in Afrikaans, the language of the oppressive white regime. Many were shot in the back as they fled from tear gas and bullets.

This appalling event, followed by the murder in police custody of Black Consciousness leader, Steve Biko, was perhaps the most important single event spurring the downfall of the apartheid regime. Since the African National Congress (ANC) came to power in 1994, June 16th has been commemorated as South Africa's "Youth Day".

This year there were demonstrations around the country and a eulogy to Soweto's victims was broadcast nationwide by president Thabo Mbeki.

Yet, just a week earlier, on Friday June 9 2006, another crowd of black protestors had also been fired upon by police. Like the martyrs of forty years before they were unarmed and shot in the back. Twenty six people were taken to local hospitals: eight had rubber bullet wounds - one with an injury to the head. Another patient had been struck in the arm by live ammunition, requiring removal of the bullet. A dozen others suffered bruises as they fled.

Call this attack but a pale reflection of the Soweto uprising, if you will. It occurred in a remote part of South Africa, far from a major city, and there were no fatalities. While the assault was covered in some national newspapers, its implications were swiftly blotted out by items more accommodating to the nation's rising optimism, and its currently buoyant good-for-business image.

The victims this time around were poor black farmers from a small community in the northeastern province of Mpumalanga, called Maandagshoek (literally "Monday's Corner"). They were trying to stop the encroachment on their land of Anglo American, the globe's third most powerful mining company and South Africa's biggest gold producer. There's no doubt that the UK company's Anglo Platinum (aka: Amplats) subsidiary had ordered police to break up the protest.

Anglo American leads the world in delivering platinum, and there's a great deal of it on the farms around Maadagshoek. The metal’s market price and "green" credentials (it’s essential to the manufacture of catalytic converters) have never been so good. Selling today at around US$1,700 an ounce, it's little wonder that the company is going to extraordinary lengths to secure new platinum-rich land.

I've seen an awful lot of big mines over the past 25 years, but few equal the breathtaking extent of Anglo's platinum enterprises, or its detritus. The amount of platinum contained in a tonne of ore averages four to seven grams, so between seven and twelve tonnes of rock must be dug up and dumped for every ounce of final product. Around Anglo's mines, waste rock and tailings piles rise to five storeys high. Uncovered, unvegetated and uncontoured, their potentially damaging content is continually blowing in the wind.

"Economic empowerment" - but only for a few

The inhabitants of Maandagshoek live on the edge of a vast, saucer-shaped metal-rich plateau called the Bushveldt. Their ploughing and grazing fields are directly in the path of expansion by the Modikwa mine, owned by Anglo Platinum and its so-called BEE partner, African Rainbow Minerals, along with two "community companies." BEE stands for "black economic empowerment", a government plan to return to "historically disadvantaged" people resource rights stolen under apartheid. Most of this plunder, ruthlessly prosecuted for well over a century, can be laid directly at the door of Anglo American and its fellow mining houses.

However, that fact seems to weigh less heavily these days than a mere decade ago. True, a new South African mining act was introduced last year, seeking to limit the handing of further rights to the bad old actors (a move Anglo American is now challenging through the courts), and black entrepreneurs are stepping into white shoes. But it's a double-edged sword, for the new men don't have the capacity (or sometimes the inclination) to take full control of mineral operations.

Although BEE companies are supposed to break with past dependence on multinational corporations they do little to empower, or channel profits to, their community-based membership. Two years ago, the United Nations Development Programme (UNDP) delivered a scathing report on the early stages of black economic empowerment: "Only a tiny minority of blacks have benefited..the beneficiaries of these deals belonged largely to the politically well-connected elite... Overall BEE seems to have entrenched inequality in South Africa. While the incomes of the top 10 percent of black earners have increased by 30 percent since 1995, the incomes of the bottom 40 percent have decreased in real terms."

Shortly afterwards, Moeletsi Mbeki, brother of the South African president, dubbed BEE a device for "white-dominated corporations to build bridges with the ANC elite. It doesn't create wealth or add value to the economy." The National Union of Mineworkers went a step further, accusing UK-based Lonmin of setting up its own BEE partner, Incawala Resources, primarily to recycle debt. Appointed as chair of Incawala was Brian Gilbertson, a consultant to Lonmin and former head of Gencor, one of South Africa's most intransigent companies during the apartheid era.

At least two men have become Rand Billionaires as a result of BEE. One of them is Patrick Motepe who heads up African Rainbow Minerals (ARM) – Anglo’s partner in the Modikwa joint venture at Maandagshoek. Motepe's reputation is, to say the least, "controversial". Just over a week ago I attended a community council in the area, where it was revealed that large loans had been made by Motepe to seven black community "partners" in order they could acquire small stakes in Modikwa. Was this a ruse to pass off debt as assets, leaving others holding the baby in the event of an "Enron type" collapse? Perhaps not - but the possibility of such a scam certainly didn't surprise those present.

South African dilemma

It's would be facile to heap all blame for the failures of black economic empowerment strategy on the ANC-led administration. The nation is only just emerging from an interlock of human and resources’ exploitation which took place, over more than a century, on a scale unprecedented anywhere since the time of the Spanish conquistadores. If recent attempts at mine “nationalisation” by presidents Evo Morales of Bolivia and Hugo Chavez in Venezuela seem halting and erratic, even contradictory, then what chances have South Africans to get the formula instantly right?

There are two key problems. While the government has taken privately "owned" mineral rights back into state ownership (bringing the country into line with many other jurisdictions) it hasn't shaken off dependency on the multinational miners. Indeed, it's caught in a cleft stick: on the one hand increasingly relying on the industry to pump in more foreign direct investment; on the other trying to steer that investment into dubious black pockets. Five months ago, the industry online journal “Platinum Today” reported that the ANC's deputy president, Phumzile Mlambo-Ngcuka, was now considering "kickstart[ing] the economy by easing up on the [BEE] rules currently binding many of South Africa's biggest firms."

The second - probably far bigger - challenge is to ensure that people brutally uprooted under apartheid receive proper compensation for past injustices (including the devastating impacts of HIV-Aids, silicosis and asbestos mining). And that rural dwellers in the path of today’s bulldozers obtain unequivocal rights to their land. Only on that basis can hundreds of thousands of poor black farmers revive their rural economies, or negotiate access to their resources at a fair price.

Indigenous title is supposedly guaranteed by Section 25 of the Constitution ( the so called property clause) and provisions of the Interim Protection of Informal land Rights Act of 1996. While the legislation doesn't enshrine a community's right to exercise "fully informed prior consent", before a company is permitted entry onto its traditional land, the intent is clear. However, a major gulf has developed between this legal promise and its actual execution. Mining companies claim they have obtained permits to drill and mine on tribal land without permission of the immediate community and without paying compensation directly to its members; even without going to court to enforce a supposed possession order.

It's this conflict between two sets of "rights" (one allegedly trampled on; the other arguably spurious) which lies at the heart of events leading up to the June 9th assault on villagers at Maandagshoek.

Communities backed into a corner

For some years the Maandagshoek community has been in dispute with Anglo Platinum over what it claims as its constitutional right to exclusive use and enjoyment of portions of the land they use for cultivation (ploughing rights). According to their lawyer, former anti-apartheid activist Richard Spoor:

"Anglo Platinum has made numerous forays onto tribal land. In so doing it has caused significant damage to property and harm to the environment. It has inter alia damaged crop fields and fences, community groundwater resources, released contaminated mine water, polluted surface water resources and dumped large quantities of waste rock onto the land. Its shaft sinking activities have caused considerable damage to homes and other
structures. Anglo Platinum also forced a number of farmers off their lands when it established its mine infrastructure. The company has refused to take responsibility for the harm and loss it has occasioned."

Mr Spoor claims that the company was asked by the community to respect its rights: if it required access, it should obtain a court order. "It's a situation akin to that of someone who, without a warrant or order of court, claims the right to enter your home. Though you refuse him entry he continues to force his way in. You would then have every right to resist such an invasion. However, Anglo has declined to approach the court out of concern that it might uphold the community's property rights. Such a decision would have enormous consequences for Anglo Platinum and other mining companies operating on tribal land."

It was, says Mr Spoor, only when Anglo refused to respect their property rights, that the community resolved on a more direct approach. "Recently, when Anglo Platinum has sent drilling teams onto tribal land, a delegation comprising tribal leaders and elders has gone to talk with them and, on each occasion, the drilling crews stopped work. At no time did the members of the tribal delegation threaten anyone or cause harm to any person or property".

However, on May 13th 2006, Anglo Platinum obtained an ex parte interdict against three traditional leaders :Kgoshigadi (chieftainess) Joyce Kgoete, Kgoshi (Chief) Isaac Kgoete and his brother Michael. According to Richard Spoor: "Ex parte applications are brought without notice to the other side, which therefore doesn't have an opportunity to be heard. It's a drastic procedure, only justifiable when it's not possible, or would be gravely prejudicial, to give notice to the respondents. Anglo Platinum knew I acted for these persons and how to contact me but it didn't. Its conduct amounts to an abuse of the court process."

The company’s principal allegation, made in mid-May, was signed by two Anglo employees, testifying that chieftainess Joyce Kgoete had threatened to instruct her community members to “stone Anglo's employees and contractors to death", and set fire to the drilling rig should operations not cease immediately. On the strength of these allegations twelve police vans were sent from a local police station to arrest the three leaders who were held in custody over night.

"Subsequently it was pointed out in court papers that the Joyce Kgoete could not speak English or Afrikaans", says Mr Spoor. "So the two complainants could not could not possibly have heard her make such threats. They then admitted that they had no idea what she said. But a certain Emmanuel Makgoge, who had not previously been mentioned in the court papers or in the criminal complaint, had interpreted the threatening words on her behalf."

Crucially, the interdict did not prevent other members of the community from continuing lawfully to resist trespass onto tribal land. "This was expressly confirmed in court by the senior counsel representing the mine, Advocate Odendaal SC. The statement has subsequently been confirmed on affidavit by a senior mine manager."

What happened on June 8th/9th?

On June 8th, Anglo once more sent a drilling team onto the community's land, where it was confronted by a hundred or more community members. Police were present but allowed the demonstration to proceed. However, unknown to the community, the company then lodged a further criminal complaint, alleging that the drilling crew had quit the site because they "felt intimidated." Although those making the complaint had not been present themselves and couldn’t identify those persons behind these supposed threats, Anglo Platinum then provided police with a list of the community leaders who led the protest so they could be arrested. According to Mr Spoor: "The company also told the police that the protests were illegal because they were in contravention of the interdict obtained against the three tribal leaders. Anglo Platinum did this, knowing full well that the order did not extend to other community members and that the protests were completely lawful."

The following day, Friday 9 June, officers from the nearby Mecklenburg police station arrived at the drill site to arrest the community leaders whose names had been provided to them. According to the affidavit filed by a police representative, the crowd was ordered to disperse, whereupon they became "oproerig" (restive). The police then fired upon the protesters with rubber bullets and a pistol. A number of community members were
arrested on charges of contempt of court and public violence, while those injured who reported to local hospitals for treatment were identified to the police and arrested.

"All the persons shot assaulted and detained by the police have given notice of their intention to sue the South African Police Services for assault and wrongful and unlawful arrest and detention", says Richard Spoor. "Civil action against Anglo Platinum is also contemplated for the malicious and willful prosecution of false complaints against the community members. A complaint is being prepared for submission to the Human Rights Commission and the Independent Complaints Directorate. There is no question that Anglo Platinum commissioned, on a false and unlawful basis, the violence that was committed against community members. "

Anglo Responds

A week later, on June 15th, Simon Tebele, the corporate communications head of Anglo Platinum, riposted angrily to the allegations made by Mr Spoor. Among Mr Tebele's claims were that, before the mining licence for Modikwa was issued in 2002, there was "an extensive process of public participation [which] resulted in the numerous communities scattered over the area covered by the mining licence being involved in the planning and structuring of the mine's future activities...[This] is not an issue that has suddenly arisen or has take place without community involvement, negotiation and benefit, including a share in the mine being developed".

The two black empowerment companies which own 8.5 percent of the Modikwa mine, claims Mr Tebele, "fully support the mining venture". He offered no apology for the police firings at Maandagshoek, six days before, nor did he deny that his company had instructed the force to take action. Instead, he attacked Mr Spoor for "potentially defamatory claims" emanating from a "small number of people who have lost out in a succession dispute for tribal and village leadership "in one of the seven local communities.

I put the company's defence to Richard Spoor. He told me: "Mr Tebele knows full well that members of the Maandagshoek Community are resident on those farms, claimed as being owned by the company, and that they have enjoyed beneficial occupation of those farms for generations - certainly well before Anglo Platinum bought them. The community enjoys informal land rights in respect of that land and their rights are protected by the law and by the constitution. Anglo Platinum may insist that the black empowerment companies have consented to its mining activities on tribal land. It does so despite the fact that the directors of these companies are overwhelmingly supportive of the Maandagshoek Community’s struggle to have its indigenous land rights respected and that they expressly disavow the company’s authority to represent, much to less to bind, indigenous communities in respect of those rights.”

Yes, concedes Mr Spoor, there was a public process instituted by the company, but "the community only participated to the extent that it could, given its lack of skills and resources, and access to independent advice. That’s all. Contrary to what Mr. Tebele states there is no agreement in place between Anglo Platinum and the indigenous communities on whose land it intends to carry out mining activities. The central demand of the Maandagshoek community is that the mine agree to negotiate terms of access to tribal land which regulates compensation for the loss and harm the community will suffer as a result of mining activities, and issues relating to the protection of the environment and rehabilitation. Anglo Platinum refuses to negotiate these issues and chooses instead the route of confrontation and repression."

“Racist, reactionary and offensive”

Richard Spoor is in no doubt: "The facts of the matter are that the company is waging a war on the community, on their culture, their traditions, their leaders, their environment and their way of life. Its approach is profoundly racist, reactionary and offensive. It is destructive of good relations and contrary to the best interests of shareholders."

It’s possible not all Maandagshoek’s traditional owners agree with their lawyer’s strident condemnation of Anglo American. But they have certainly given the lie to the company’s claim (via Mr Tebele) that only a “small number of disaffected people” has a quarrel with its practices.

Nine days after the June 9th shootings I sat with more than six hundred local women and men under a Marula tree, just a stone's throw from where company employees were clearing farmland for further drilling, barring it from villagers' access with uniformed guards and razor-wire topped fences. Sitting next to me was a representative of one of the two smaller BEE partners in the Modikwa joint venture, which, according to Anglo, back it to the hilt. The gathering unanimously resolved to step up resistance to the company’s encroachment on its fields and roads, organise a protest march, and take its grievances directly to the UK conglomerate's "Big Boss", Sir Mark Moody-Stuart.

At the very least, Anglo American in London can't deny the gravity of recent events, nor the “reputational fix” in which it finds itself, now that one of its vital subsidiaries has been accused of provoking an unlawful attack on unarmed people.

Mark Moody-Stuart claims his company is dedicated to reversing the injustices bequeathed by apartheid and to be setting the highest possible standards in
corporate-community consultation.

What happened this month at Maadagshoek strikes right at the core of those objectives.

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