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21st February 2024

November 2023

Dear Hassen, this edition is filled with the continuing struggles of our people in South Africa, the continent and the world. It has the usuals and some that have just gatecrashed our bulletin. So you will get progress reports on SLAPP suit cases and workshops, court cases of importances to our sector as the vitally important resources. In the MEET UP, we feature our board member Ms Constance Mogale and, in a separate story, we include her role in fighting to enhance civic power of the most marginalised. Our sister,  comrade, is not well and we wish her a speedy recovery.

The death of the miners is breaking news we could not ignore. It represents a loss of life and community wellbeing for many and the article asks many questions, as do the other stories such as the increasing xenophobia, also known as Afrophobia, we fear may rise with the forthcoming elections already on the menu. 

A special word on the resources – there is much food for thought there. Read it over the festive break and come back fresh to fight, another day, another year… The chronic, persistent, structural and systemic poverty and inequality in our society will always be on our agenda (at least in our lifetimes). The resource of the South African Human Rights Commission report EASTERN CAPE PROVINCIAL OFFICE: SAHRC PROVINCIAL INQUIRY INTO CHILD MALNUTRITION AND THE RIGHT TO FOOD EC/2122/0409 August 2022 makes for shocking reading as poverty and malnutrition takes place in a land of plenty.

The SAHRC convened inquiry into child health in the Eastern Cape held between April 2021 and March 2022 found 116 children died of severe acute malnutrition. The Commission has asked the government to submit reports within a specific time on how they were going to address child malnutrition in the province.The report comes hot after reports that two Eastern Cape moms killed their children and committed suicide, presumed to be poverty related causes.


Presenting the findings, the SAHRC commissioner, Jonas Sibanyoni said, “The prevalence of severe acute malnutrition and malnutrition-related deaths among children in the Eastern Cape, as evidenced by the data on child mortality due to SAM, indicates a violation of the right to life.” The commission also found that there have been violations of the right to food under Section 27(1)(b) of the Constitution at many governmental levels. “The state’s obligation to take reasonable legislative and other measures, within its available resources, for the progressive realisation of this right has not been met,” said the commissioner.


Other manifestations of poverty and inequality reflect across the country and what is clearly needed is a real and effective national development strategy. The ten year review of the National Development Plan makes for compelling reading. It is undeniable that we need a genuinely workable national development strategy that has the buy-in of all of society, and the National Development Plan is not it or clearly is not working. This was in effect what Ms. Maropene Ramokgopa, the Minister in the Presidency for Planning, Monitoring and Evaluation, and the Chairperson of the National Planning Commission, told society. Time is running out. We have less than ten years to meet our deadline.

Although this Review provides a comprehensive analysis of the current state of our country, the underlying measurement criteria remained the three overarching challenges that the NDP had identified: inequality, unemployment, and poverty. In short, these challenges remain, and in some cases have gotten worse.

But it is not all  doom and gloom as we need hope as well. The resource on FAIME promises some hope. They are a network of professionals who want to be of service to the social justice movement and their vision is of a “world in which Indigenous communities and other mining-affected communities and organizations can access credible, competent and trustworthy experts.” These experts will support and inform communities so that they are empowered to make real and effective and meaningful decisions for themselves.


To end, whilst not a feature in this edition, we pray, organise and work everyday for peace and justice in our world including in occupied Palestine. In Gaza, medical authorities speak of over 15 000 Palestinians killed (most of these are children). That it happens with impunity compels us never to stop talking and working towards justice for all. 

Read and pass it on.

· COMMENT ·

Mining is a dangerous and deadly sector, said the Minister of Mineral Resources Gwede Mantashe

The Mineral Resources Minister Gwede Mantashe visited the Impala Platinum mine in Rustenburg on 28 November 2023 where 11 miners died in an accident.  Newspaper reports stated that on Monday afternoon 11 workers died at the Rustenberg-based mine when a cage carrying 86 mineworkers suffered a mechanical fault in its conveyance system, resulting in it plunging to the bottom of the shaft. In quick time, this became the national story and investigations to get to the bottom of this accident are already in process. The Union – the Association of Mineworkers and Construction Union (AMCU) – blamed Impala management for the accidents. Apparently, prior to the accident, workers complained about the health and safety protocols not being adhered to.

Whilst the minister took issue with the brazen assertions and demands by the unions, there is no denying that these assertions made now or later have merit. Mantashe called for unity and said that “we” have to learn from disasters like this one and “draw lessons from it”. He concluded that “what we’re not going to do is stand on tables and shout about it. We don’t campaign on disasters.”

What irked Minister Mantashe so much? Well, the AMCU president Joseph Mathunjwa called for the amendment of the Mine Health and Safety Act to enable unions and workers to charge employers with culpable homicide in cases of negligence when workers die in such accidents. He alluded that the politicians were compromised and hence they would not act: “But they will never. Who is going to charge them because the politicians have an interest in these mines. I mean, if they never have an interest, the Mine Health and Safety Act would have been amended a long time ago.”

Mine deaths – part of the job?

South Africa’s mining industry has recorded a large number of fatalities and disabilities in South Africa and the subregion. The Minerals Council in not the simplest of languages noted that “the number of fatalities in the South African mining industry regressed by 23% in 2021 compared to 2020 – increasing from 60 in 2020 to 74 in 2021.” 

This year, the figure thus far is 52 workers who have died and it is believed to be the highest number since 2021. Last year 2022, the provisional figure stood at 49. We have been here before. As we say, one death is one death too many. The other day it was 11 workers that perished leaving behind loved ones, families, friends and communities.  

We have come a long way from these deadly figures when the Minerals Council reported that between 1984 and 2005, more than 11 000 mine workers died in South Africa. In 2003, the death toll from mining accidents was approximately 270 fatalities and an agreement was reached to reduce mining fatalities by 20% per annum.

Maybe when the bosses and the share-holders are held liable for the avoidable deaths of their workers, then and only then will things change for the better. We could also ponder, if these deaths are worth our while, as citizens? Are these shiny metals and other stones really worth the disabilities and deaths?

ARTICLES

Mining and Xenophobia

I was invited to speak at a recent seminar for media practitioners hosted by the Institute for the Advancement of Journalism and Lawyers for Human Rights. After the workshop, I was more frightened than when I entered. Unless proactive and progressive measures are taken by civil society and the authorities, many immigrants, foreign nationals will be victimised and killed as we lead up to the national elections in 2024.

The telltale signs are already there. President Cyril Ramaphosa – clearly with political and economic resources in focus –  authorised the employment of 3 300 members of the South African National Defence Force (SANDF) ”for service in cooperation with the South African Police Service (SAPS) to prevent and combat crime, and maintain and preserve law and order, under Operation Prosper”. The government further reported that the SANDF will, in cooperation with the SAPS, conduct an intensified anti-criminality operation against illegal mining across all provinces, from 28 October 2023 until 28 April 2024. The cost of the deployment was said to amount to R492 143 296. This was contained in a letter from the President to the Chairperson of the National Council of Provinces (NCOP), Mr Amos Masondo. 

The Bench Marks Foundation has taken issue with the rush to go for the troops as the government has failed to close mines properly for various reasons including costs. Indeed, there is no existing law or policy that has been implemented or effective.


Over the recent past there have been attempts to get the security forces involved to police the crisis and also because of the presumed costs to the country.  It has been reported that the “stolen gold” finds its way to the United Arab Emirates (UAE), India, and possibly China. News reports, in particular the eNCA one, suggest that more than “34 tons of gold arrived from South Africa between 2012 and 2016 this gold was likely exported illegally after being processed by small refineries in Gauteng that are at least 100 small refineries in Gauteng alone.” 


It is worth bearing in mind that, from inception, the Minister of Police as well as the Minister of Home Affairs and other politicians joined in with others pretenders to the electoral throne in being anti foreigner.  

Historical view


The attacks of 2008, which our then leaders refused to label xenophobic, had similar origins. The Report on the SAHRC Investigation into Issues of Rule of Law, Justice and Impunity arising out of the 2008 Public Violence against Non-Nationals captured the context in their opening paragraph, thus:


“The scale of violence and displacement in May 2008 went far beyond any precedent in South Africa’s democratic history. Yet the 2008 mobilisation against non-nationals can only properly be understood within the country’s broader history of xenophobia and South Africa’s “culture of violence.” 1 Despite our formal transition to equality and democracy, violence is often still viewed as a legitimate means of resolving issues. 2 Non-nationals resident in South Africa are all the more likely to fall prey to violence, as South Africans often blame them for crime and unemployment, and view them as responsible for depriving “more-deserving” citizens of jobs, housing, and other economic goods. Outsiders are, therefore, often subject to intense discrimination and hostility from local communities.”


What is more, these attacks were not unexpected as a low intensity “war” against foreigners was long on the way. As a result, it is a matter of record (SAHRC) that the “May 2008 attacks, which targeted mainly community members originating from African countries, left at least 62 dead, hundreds wounded, and contributed to the displacement of 100,000 people or more.”


Whether we learnt from these actions and the reports or the warnings of today with openly fascist calls for repatriation and harm be caused on non-nationals, is still to be determined. But we do not have the luxury of time.


Mining Sector – always multinational 


We work with mining affected or impacted communities and believe that what is happening in the belly of our towns, cities and places where mining occurred or may still be present formally comes from the hands of former mine workers. These workers live either in Lesotho, Zimbabwe and wherever, but they have experience. How one defines their extractivism of the resources, mainly gold, is subject to debate as often these are the opening grounds not for a solution, but an attack on those who are vulnerable.


They are variously called zama zama’s, unregulated miners, criminal syndicates and gangsters but dominant in our media is the concept ILLEGAL, before mining. We will be living in a hole not to know that these activities cause real problems where they are located around communities, such as Maraisburg, Riverlea (Gauteng and elsewhere) and communities genuinely fear for their lives and cry out for safety.


Add illegal to your problem and…


I argue that the memory of the 62 people who have died during 2008, has taught very little to the authorities, government and the police and society at large, including the media.


A cursory glance reveals that the deaths of foreigners and the way it is reported, lacks compassion and a human rights orientation. It borders on the xenophobic and acts like the policemen who either stand by and watch abuses or, worse, are actually tacitly encouraging the violence, unwittingly.


Let me demonstrate by way of some media coverage:


“There have been a number of claims from both police and community members in affected areas that perpetrators of opportunistic crimes during the 2008 violence were inspired by media coverage of attacks elsewhere.68 It is likely that media images and reporting made visible the level of impunity enjoyed by many perpetrators, reducing the disincentive to committing crimes publicly” SAHRC report (2008)


[April 2022]
Times Live reported Four wrapped bodies of suspected zama-zamas found on Benoni road

A postmortem will be conducted to confirm the cause of death. “The deceased are suspected to be illegal miners.” Masondo said the police received an anonymous call about the bodies left next to the road. “On arrival, police found four bodies wrapped in blankets and plastic,” he said. The bodies have not yet been identified.
Comment: note the use of illegal

[September 2022]
The Independent Online Newspaper wrote:

Rustenburg – Gauteng police have launched an investigation after the bodies of six suspected illegal miners were found with gunshot wounds near the N1 freeway in Johannesburg on Wednesday, Gauteng police said.
The bodies were found near the Maraisburg off-ramp in Bosmont.
According to Gauteng police spokesperson Brigadier Brenda Muridili, police were informed about the bodies that were lying in an open veld next to the N1 freeway in Bosmont and New Canada, in the Johannesburg district.
Comment: the reporting of others were similar…note six suspected illegal miners…no space to say humans…

[November 2022]
The Sowetan reported that the “21 suspected illegal miners who were found dead at the Amatshe mine in Krugersdorp, on the West Rand, may have been trapped underground during heavy rains.

Mogale City mayor Tyrone Gray said while investigations were still underway to determine how exactly the men died, indications were that Tuesday’s heavy rains had prevented them from exiting the narrow tunnels…”


[January 2023]
Briefly.co.za reports that 8 DEATHS:POLICE INVESTIGATE THE DEATH OF 8 ALLEGED ZAMA ZAMAS BURIED ALIVE IN HEAVY RAINS IN LIMPOPO 

This short article is filled with illegal and alleged zama zamas and clearly lacking compassion nor understanding of a wider problem and context.

[June 2023]
Zama-zama death toll may rise – MantasheMantashe called for Lesotho and SA to work together to combat illegal mining
(The Citizen and the South African Government)

Mantashe was speaking at the mine in Welkom where the accident occurred in May. A report of the incident was received by the department over the weekend.
“Illegal mining is not mining activity, it is a criminal activity. They get into accidents and die in numbers. They suspect 31 here [but] I can tell you it will be more than 31. In Krugersdorp, we saw the deaths of 21, in Gloria we saw the deaths of 17,” he said.
The minister said retrieving bodies underground will not be easy.
“We have agreed to put our heads together to find a solution. We can’t leave those bodies underground. That is what we are working on, but this is going to take a bit longer because there is no direct shaft that has a connection with this shaft.


[June 2023]
News 24 reported that: Investigation launched into the death of 31 Zama Zamas in Free State mine

Investigations have been launched into the deaths of at least 31 people in a mine last month in the Free State province that has been closed for around 30 years, the energy department said late on Thursday.
They are believed to be from neighbouring Lesotho – which reported the incident to South African authorities – and died in a ventilation shaft in Virginia mine in Welkom city, the Department of Mineral Resources and Energy (DMRE) said.
Comment: rather cold and impersonal in the face of death of humans.

[August 2023]
SABC (August 2023) reported that “Dozens of residents of the Jerusalem informal settlement, south of Johannesburg, have spent the night at the Florida police station, following a shoot-out between suspected illegal miners.


Details surrounding the incident are sketchy. Xolani Fihla, spokesperson of the Johannesburg Metropolitan Police Department (JMPD), says residents fled to the police station on Thursday night.“Last night, a group of scared residents sought refuge at the Florida police station fearing for their lives amidst the prevailing atmosphere of violence. MMC Tshwaku [Johannesburg MMC for Public Safety, Dr Mgcini Tshwaku] was on scene and would like to assure residents of Jerusalem that JMPD will work with SAPS and community policing forum members to put an end to this violence and terrorising of residents by the zama zamas,” explains Fihla”.
Comment: note the use of illegal and terrorising the residents. No other comment by an NGO or the so called Zama Zama’s was sought. 


News 24 on the same story argued not providing greater context nor mentioning the failure of the government in terms of mine closures. They argued similarly under the emotive headline: ‘We live like rats’: Desperate Joburg residents reveal their fear of zama zamas

In both these stories, not comment on the companies who have a legal, moral and societal obligation to close mines and rehabilitate the land to its former conditions.

[October 2023]
The CItizen reported on the Minister of Police thus:

‘In their yards are Lamborghinis’: SA cracking down on ‘big guns’ in illegal mining – Cele
The Police Minister outlined how the government is dealing with the issue of zama zamas in SA.
He said the suspects, six of them foreign nationals and three South Africans, live in fancy houses, with expensive furniture and fancy cars.
“We have moved up to the middle level. We have arrested nine people who are middle class of some form in the zama zamas.
Cele said the Special Investigating Unit (SIU) had already attached 51 one of the suspects’ cars and seven houses that could be worth R38 million.
Comment: Minister Motsoaledi and Minister Cele are regular features in this field.

Dr Elias Motsoaledi and Bheki Cele, Ministers of Home Affairs and Police respectively, are two of the key culprits.


Conclusion:

These examples were just chosen as they appeared and there are many more. The point, however, is that they are dispassionate and seemingly – wittingly or otherwise – against these activities. Government and the corporations get a free hand and are rarely part of the story.


The phrase illegal becomes a licence to kill or do whatever. Journalists must take more care as words are costly.


I accordingly propose some pointers we may want to consider going forward. These are:


  1. Politicians must put a lid on it

We must address popularist rantings from within the ANC and outside of it as it is a growing problem that encourages other pretenders to do likewise. Those others out of power but vying for power like Mashaba, Herman and those from the Patriotic Alliance have no barriers in their hateful comments. These must be challenged if and when reported to various relevant authorities.

  1. The Independent Electoral Commission (IEC) must include in the pledge not to cause harm to foreigners and non-nationals. The Electoral Commision usually encourages that all contesting political parties and candidates sign a pledge committing them to promote free and fair elections in the country and free political campaigning and open public debate. Doing harm to others, in particular non-nationals, is a violation of the constitution and the pledge must reflect that. The pledge comes into existence from the day of the proclamation of an election until the announcement of results.

  2. We must dust off all those past resolutions from the World Conference Against Racism (WCAR), including the report of the SAHRC quoted above here. In the final declaration of the World Conference Against Racism there are specific recommendations to the media and the media owners. They can start by calling out racism and xenophobia and providing more contextual and accurate reporting.

  3. Civil society organisations must champion the necessity of transforming the Southern African Development Community (SADC) into a Southern African solidarity Community with an economy based on social justice, decent work and possibilities for creative livelihoods, that favours self-employment and community sustainability. The free movement of people was long ago championed by The Southern Africa Trade Union Coordination Council (SATUCC) and the African Free Trade Agreements. These are pointers that should be used to further integrate and unify a region that has so many linguistic, historical and employment relations that go back to over a century. The subregion is imbued with immense wealth for the benefit of the many and not the few. It is time to take that foot forward and step away from kicking a brother or a sister.

By Hassen Lorgat

Photo courtesy of the Mail and Guardian

With a few newspaper stories doing the rounds (here and here), we asked our fellow Civil Society Activist  to write to us.

SLAPPs: Reflections on the Settlement Agrement with MRC
John Clarke

People are asking me if any money changed hands as part of the settlement agreement. The terms are confidential, but I can say that I was broke before the first seven defamation claims for a combined total of R2.25 million from Mark Caruso and Mineral Commodities Ltd (MRC) in July 2016, and I stayed broke as these escalated fourfold to 29 claims over the next seven years to a grand total of R10 million. So, I continue to be broke after this settlement agreement which halves the R10 million under claim. In fact, my wife Sharon says “If my husband had R10 million I would have had first dibs on it”. So you can draw your own conclusions as to whether or not money changed hands.

Context matters. I believe it is important that civil society understands the roots of where it all began, and how it progressed.

Benchmarks Foundation was at the very start of my effort to “Name, Mask and Engage the Powers” behind the Xolobeni Mining Rights saga. It was way back in 2007 when John Capel called me to have coffee, so we could explore funding options to ensure Richard Spoor and I could provide professional services to the Amadiba community. The backstory of how we became involved is told in this video “Where do Human Rights Begin” on my YouTube channel.  

The “Name, Unmask and Engage the Powers” strategy is from peace activist theologian Walter Winks trilogy of books. My experience has necessitated a bit of elaboration to the final “Engage” stage. Engaging has meant “Confronting” – which is what social workers are trained to do with clients who are steeped in denial. Although Mark Caruso was not my client, he and his business partner Zamile Qunya were part of the “client system” and when it became clear that the local activists were at risk of their lives if they continued to confront the powers on the ground, we had to make a tactical decision to engage/confront the Powers in Mark Caruso’s own domain – the Shareholders AGM held in June 2007 in Perth Western Australia. The full story of that confrontation is told in this article “Behind the Irony Curtain: Blood Diamond, Xolobeni and the real story of MRC”.

The article was published two years after the first set of claims were served on me, and attracted another claim from Mark Caruso suing me for another R500,000. Looking back now, it seems that the board of MRC eventually got the message of the article and in March 2021 fired Mark Caruso for his tendency to be economical with the truth.

It is important to know that I had been engaging with Mark Caruso for a whole decade BEFORE he launched this SLAPP attack.

The first claims only came after the murder of Bazooka Rhadebe in March 2016. Mark Caruso and I agree upon one point at least: the South African Criminal Justice System is broken.

A few weeks after Bazooka was murdered, I consulted with the late Col Frank Dutton, former head of the Scorpions, seeking guidance on what we could do to ensure justice was done. Col Dutton advised that the only prospect of such under the prevailing state of capture, was through civil litigation. So when Mark Caruso and MRC served the defamation claims against me, I used them to try and ensure the public would know the deeper truth about the corruption that was going on. That is why I kept repeating statements, and Mr Caruso kept trying to SLAPP them down.

Col Dutton was correct. Seven and half years have passed and the killers of Bazooka Rhadebe have still not been arrested or charged. So in that sense I am not unhappy about Caruso’s claims against me continuing. It is not really about him or me. It is about the failure of our own government to ensure justice is done for the marginalised, the vulnerable and the disadvantaged.

While I am pleased with the settlement with MRC, it will not solve the underlying problem: a lack of legitimacy, integrity and competence in the Criminal Justice System.

Notwithstanding his hostile scapegoating of the respondents, when it became clear that he was not going to sign the settlement agreement together with his other plaintiffs (from whom he is now alienated) I did approach him directly, without lawyers, to try and make peace. He said he would withdraw the claims if I made a public apology. I scrutinised them (and my conscience) again to see if there was anything I needed to apologise for. I concluded that there wasn’t and to do so would disrespect the people who confided what was happening on the ground and behind the scenes, which emboldened me to confidently speak the truths they had disclosed to me.

It is highly unlikely that the matter will ever be ventilated in the Courts of Law, so it is important that they are ventilated in the court of public opinion. Mr Caruso will probably cry that this a violation of the “sub judice rule”. Part of my defence is that all the statements were made in the public interest, so it is only logical that the public are intitled to express their opinion on the matters.

Therefore I would like invite anyone who wants to read the details of each of the 15 claims and the source documents/interviews that gave rise to the claims, to please contact me on johngeeic@gmail.com, and I will email the details.

Moreover, my intention was never to shame or defame Mark Caruso or MRC, but to rather challenge the South African Government for allowing the conflict to escalate. I believe Mr Caruso may have been less the sinner and more sinned against by “corrupted people” in government and the mining sector who knew his weaknesses and used them. If one studies all the public statements I made, that becomes clear.

The challenge I face now, looking to the future, is to move from “Grief” through “Grievance” to eventually break through to “Gratitude”. It takes an eternity, but I am feeling so grateful to so many people, who have stood with me in solidarity. However, it seems like the Grief-Grievance-Gratitude process is cyclical. That Gratitude opens one to new awareness about suffering – especially how people suffer from their own stupidity, and that leads back to Grief for them (“Father forgive them, for they know not what they do”). I now can’t help feeling a measure of grief for Mark Caruso, and other foolish people who think the courts are where their salvation lies. It lies within their own conscience and gets beyond rationalisation of guilt by facing the honest, hard truth. I have now come to the belief that speaking and facing the truth is always the better way. Not ‘in most cases’. In ALL cases without exception. When people try to manufacture a false narrative by lying about what happened in the past, they unwittingly prove a truth in the present: that they are guilty.

For example, one of my whistleblower clients Patrick Maduna went public two months ago to blow the whistle on his former employer Lociware, and the Chairman of Shell SA, Hlonipizwe Mtolo, who was party to setting up Lociware as an alleged BEE front for dubious business dealings. Shell Global has now fired Mr Mtolo, whose lawyers have now written to Patrick to demand he retract all his statements that point accusing fingers at him. Patrick is clearly being scapegoated, and by so doing Mtolo in effect, he admits his guilt. Watch this video. Shell SA Chair Hlonopizwe Mtolo Resigns. Was it due to Whistleblower Patrick Maduna’s disclosures?

I am not passing judgement on him, as the video shows, I have invited him to some and speak to me in professional confidence. Alas the only response received has been for Patrick Maduna to receive a letter from Mtolo’s lawyers, demanding that he retract all the “defamatory” allegations made in Patrick’s Statement of Case in the Labour Court. Patrick, who has already staked everything on truth, and is not about to suddenly flip to exonerate Mr Mtolo.

Mr Mtolo will have his day in court to defend himself. But not from another tedious litigation-by-attrition SLAPP attack. It will come from the due process of a proper criminal trial. It grieves me yet again that Mr Mtolo is trying to frustrate that process. It only makes him look more guilty.

It is very pleasing to know that as a consequence of the Mineral Sands Judgement the playing field has been made a little but more level, so that when the matter comes to court, Patrick and all other whistleblowers will be more equal before the law in future.

Caption: Mabola Protected Environment, Wakkerstroom, Mpumalanga, faces potentially catastrophic threats from a new coal mine. One of only 21 Strategic Water Source Areas in the country, the area is composed mostly of wetlands, pans and endangered grassland ecosystems that support endangered species. (Photo: JAMES OATWAY for CER)

Water sovereignty and justice wins the day

We are pleased to share this article, first published in Ground UP. It talks about the work of the MABOLA Coalition, of which the Bench Marks Foundation is a member. It is written by John Yeld and was headlined: ConCourt dismisses Uthaka Energy’s appeal bid against Mpumalanga coal-mining interdict

The subsidiary of India-based Atha Group is pushing to mine within a Strategic Water Source Area which contributes to South Africa’s fresh water supply.

The Constitutional Court has for a second time stopped an attempt by a coal-mining company to have it intervene in a lengthy legal battle over a proposed underground mine in the critical wetland water conservation area of Mabola, Mpumalanga.

Uthaka Energy (Pty) Ltd (formerly known as Atha-Africa Ventures) is a local subsidiary of India-based mining and minerals company Atha Group, which had planned to start operations at its Yzermyn underground coal mine at Mabola earlier this year.

Earlier this month, the Constitutional Court dismissed an application by Uthaka Energy for leave to appeal an interdict order granted in the Pretoria high court in March.

The interdict prohibits the company from starting any mining at its proposed Yzermyn coal mine until six high court ongoing challenges to various approvals for the mine already granted by the authorities have been resolved. The company is currently only allowed to do survey pegging of the mining area and an associated wetland.   

The interdict application was brought by a coalition of eight civil society and environmental organisations that have been opposing the mine since 2015.

The proposed mine lies within a Strategic Water Source Area in the grasslands and wetlands of the Wakkerstroom area, one of only 22 areas that together produce more than 50% of South Africa’s freshwater.

Until January 2021, the proposed mining area was also included within the 8,772 hectare Mabola Protected Environment, a protected area declared under the Protected Areas Act in 2014.

However, Mpumalanga environment MEC Vusi Shongwe in January revoked Mabola’s protected area status, effectively allowing the proposed coal mine to proceed without the joint ministerial permissions. This is one of the six authorisations currently being challenged by the coalition.

Read more: Constitutional Court dismisses coal-mining company’s appeal bid

Photo: Courtesy IOL. Displaced Sporong Community members walking though the field where only two of their graves remain

Historic court judgement affirms the right to participatory democracy
Constance Mogale and Others v Speaker of the National Assembly and Others
CCT 73/22 (Date of judgment: 30 May 2023)


New Bench Marks Foundation board member Ms Constance Mogale, is an asset to the organisation. In her capacity as the National Coordinator of the Alliance for Rural Democracy (ARD), Ns Mogale took the action to contest policy and legislation that threatened the land rights of citizens living in the former Bantustans. She and her allies fought for the right of  and for participatory democracy and this video will help to provide context and background.

Ms Mogale is currently not well and we wish her well and a speedy recovery.

The full case is: Mogale and Others v Speaker of the National Assembly and Others (CCT 73/22) [2023] ZACC 14; 2023 (9) BCLR 1099 (CC); 2023 (6) SA 58 (CC) (30 May 2023). Here is an extract from the media summary of what the court decided.  

“At both the National Assembly and provincial legislature levels, the deficiencies in the hearings were endemic. Insufficient notice was given ahead of many of the hearings. At some hearings, there was a failure to conduct pre-hearing education. Some of the hearings were inaccessible: limited transport was provided and hearings took place in venues far from where people lived. At many of the public hearings, no copies of the TKLB were provided. Where copies of the Bill were provided, an insufficient number of copies were provided. Further, copies provided were often in a language that the local community could not understand. Where there were no written copies of the Bill in the appropriate language, oral presentations were not given or were inadequate or inaccurate. At many of the hearings, there were translation issues. In both sets of hearings, the Bill was misrepresented as providing only for the recognition of the Khoi-San people and it was not conveyed that the Bill raised important consequences for other communities. Attendees at some hearings complained that they did not have sufficient time to consider the Bill in order to give meaningful input. Further, in many of the hearings, improper attention was given to certain groups to the exclusion of other groups. Particularly, in some hearings, attendees were silenced in favour of traditional leaders. In other meetings, attendees were silenced arbitrarily.

The public hearing reports that were put before the National Assembly’s Portfolio Committee on Cooperative Governance and Traditional Affairs and the NCOP Select Committee on Cooperative Governance and Traditional Affairs, Water and Sanitation and Human Settlements (Select Committee) did not accurately convey the views of the public to these committees. The level of detail provided in the negotiating mandates following the public hearings organised by the provincial legislatures varied considerably. Following the public hearings organised by the provincial legislatures, the Select Committee called for written submissions from the public. The content of these submissions were insubstantially considered by the Select Committee. As a result, the views and opinions expressed at the public hearings and in the written submissions did not filter through to Parliament. Assessed together, the deficiencies that occurred at the different stages of the public participation process are numerous and material. 

The Constitutional Court held that, collectively, these deficiencies demonstrate a wide-ranging and substantial failure to facilitate public participation. The Constitutional Court held that Parliament and the provincial legislatures’ failure to comply with their constitutional obligation to facilitate public participation renders the Act unconstitutional and invalid. The declaration of invalidity was suspended for a period of 24 months to allow Parliament an opportunity to re-enact the TKLB in a manner consistent with the Constitution or to pass another statute in a manner consistent with the Constitution”.

Fish allegedly killed by the recent breach of a mine tailings dam in Madagascar. Photo courtesy of Andrew Lees Trust

Urgent action on tailings is needed
Jan Morril and Hassen Lorgat

We have seen time and time again that communities bear the brunt of irresponsible mining practices, especially when tailings dams are poorly constructed and/or poorly maintained. We need look no further than the Jagersfontein tragedy in 2022 to understand the dire consequences when mining operations do not prioritise safety and are not properly regulated. 

This is why the Bench Marks Foundation works to increase our capacity building and training program frontline community members. This initiative is accompanied by two international partners Earthworks and Mining Watch – Canada. Together with another of our partners, London Mining Network, we have sought to create awareness and activism around tailings facilities to be considered high priority action points for governments (as regulatory authorities) and the owners of tailings dams / facilities.

The Switzerland based Responsible Mining Foundation estimated that there “are still approximately 223 billion tonnes of tailings stored in more than 30,000 tailings storage facilities around the world, including active, inactive and abandoned facilities”. It goes without saying that most of these have weak and ineffective regulation and little oversight by citizenry, in particular organised communities, CSOs and trade unions.   

Through our collaboration the Bench Marks Foundation participated in the relaunch of the Safety First Guidelines for Responsible Mine Tailings Management during May 2022. The launch can be seen here

Mining Watch’s Jamie Kneen pointed out that “mining is a waste management industry that produces metals as a by-product. Much of what mining produces is wasteful, toxic and dangerous.” 

Jan Morril, as part of the relaunch of the safety First report, critiqued the “official” initiative that came into being in 2020 called the Global Tailings Review. This process co-convened by the trade industry association the International Council on Mining and Metals (ICMM), the UN Environment Programme and Principles for Responsible Investment, released its Global Industry Standard on Tailings Management (GISTM). ICMM members have committed to implementing the GISTM at all mines within five years, but their efforts to comply with this standard fall short.

“Even if mining companies complied with the GISTM, communities still wouldn’t be safe. While an important first attempt at international tailings dam regulation, the GISTM does not go far enough to establish protective standards that would rein in the most dangerous practices, to ensure affected communities are included in decision making around tailings facilities, and to mandate corporate accountability at the highest levels for tailings dam safety.”

We will soon be expanding our community training to include more detailed information and capacity building around tailings management, international best practices and standards, including Safety First: Guidelines for Responsible Mine Tailings Management, and legal and legislative frameworks related to tailings in South Africa. With this information, trained community members will be able to advocate for improved tailings management with companies and regulators. 

We will continue to work with communities, like Wonderkop, who are exposing and confronting dangerous tailings management practices and those who have suffered tailings disasters, as in Zululand, Anthracite Collieries and Jagersfontein. By convening community workshops with mining affected communities around Safety First: Guidelines for Responsible Mine Tailings Management, we can develop a template for community action. This template will include where to obtain help from government agencies, and institutions designed to safeguard democracy in Chapter 9 of the South African Constitution like the Public Protector, the Gender Commission and SA Human Rights Commission. The workshops will be based on a train the trainer models. Presenters will include our historic partners Earthworks and Miningwatch Canada.

It will be important to also identify and build relationships with South African based technical experts able to provide support to tailings-impacted communities, by reviewing technical documents, site visits, consultations and other activities.

Bench Marks will increase our tailings activities to monitor the safety of operations based on the guidelines outlined in Safety First, whilst we engage both the Department of Mineral Resources, and the Department of Water and Sanitation (DWAS). Both have a shared responsibility around water use, wastage and mining although not to the same legal mandate. The legislative framework provides for DWAS to monitor tailings although this is not spelled out as a clear work area on their website ie. is is hidden amongst far too many other concerns. We will also use the community workshops as a way to identify tailings dams and will advocate for a public searchable national tailings dam inventory.

Elephants feed along the banks of the Crocodile River, close to where a new coal mine is planned – Image: Tingana Collection (Courtesy Daily Maverick)

POINTS TO PONDER
Innocent mistake of part of a systematic plan to exclude? You decide..

The impacts on the Kruger National Park are not discussed at all… The locality maps in the draft report do not indicate the ­proximity of the mine to [the park]… It is highly questionable as to whether the omission has been done on purpose. – Oscar Mthimkhulu, managing executive, Kruger National Park

A controversial plan to mine coal on the southern boundary of the Kruger National Park has been revived, raising concern about what this means for the country’s best-known wildlife sanctuary – as well as for surrounding ecotourism lodges, the agricultural economy and scarce water resources.

The initial plan was launched in 2018 by a relatively unknown mining company, Manzolwandle Investments, based in Emala­hleni (Witbank). It involved both opencast and underground mines over a massive 18,000ha swathe of land bordering the park.

That first proposal was rejected by the Department of Mineral Resources and Energy in 2020 after vociferous objections. Now it has been revived by the same mining group using a different name and different environmental consultants.

Read the full story on the Daily Maverick

THE MEET - UP

A meeting place to learn about organisations, networks,
movements and people resisting injustices and whom we work with.

Board Member Constance Mogale 

Today I am based in Johannesburg because of my work. I live here with my daughter and grandson, but I spend much of my time with my son at our family home in Goedgevonden where he lives with our extended family. My son is engaged in farming, bee-keeping, vegetable gardening and training his fellow young farmers in small scale alternative farming methods. 

My family’s roots run deep in the land around Ventersdorp, including Goedgevonden from which we were removed to Vrischgewaagd, and in Putfontein near Coligny, from which family members were removed to Ramatlabama near Mafikeng. I also had family living in Volgestruisknoop near Putfontein who were removed to Gannalaagte. I was born in Goedgevonden and grew up in Vrischgewaagd and later Ramatlabama 600. 

That entire area was densely settled by African families who had countered dispossession by buying and establishing rights on land they had acquired in defiance of the laws of the Boer Republic and apartheid. They managed to establish dignified and thriving family homes against all odds, and invested heavily in the education of their children at local schools and at nearby mission schools such as the famous Bethel Opleiding Skool (now called Bethel High School), Boitshoko High School built by Uitkyk Missionaries, and Kutlwano Secondary School in Mogopa. 
     
I am fortunate to come from a tradition of strong and resilient families who can trace our histories and land rights back on both the maternal and paternal sides.   

If the apartheid government had been consistent in its policy, it would have made our densely settled, thriving, and developed belt of African owned and occupied land into a homeland area. Instead, they embarked on a process of destruction and forced removals to accommodate white interests because of the mineral and agricultural wealth of the Western Transvaal maize belt. This process of destruction and forced removals was in fully swing from the 1970s onwards. 
     
The process of challenging forced removals has defined my life. As a young schoolgirl, I took minutes for the land claiming committee, which was forcefully re-occupying Goedgevonden, Welgevonden and Nagel led by the late Mr O L Segopolo. I was heavily involved in the process of re-occupying and rebuilding Goedgevonden in many ways, including volunteering as a teacher and making sure that both the two schools we re-built were registered. 
     
I was inspired by brave community leaders from other areas who spear-headed the drive for reoccupation and restitution of land rights, stalwarts like Mam’ Beauty Mkhize in Driefontein, Mam’ Prisca Shabalala in Matiwaneskop, the late Reverend Ramosime, and Arthur Monnakgotla of Bakubung, Mam’ Tshepo Khumbane in Bronkhorspruit, Othniel Phasha of Doornkop in Botshabelo, Mpumalanga, Mr Philip More of Bakwena ba Mogopa, the late Christian Mabalane of Baphiring and others. I remember and personally experienced the ambivalent role adopted by many traditional leaders or chiefs of the Western Transvaal in those days. Many of them cooperated with the policy of forced removals and became part of the Bophuthatswana government. 
     
I was a leader of the lobby to extend the cut-off date for lodging restitution claims from April 1998 to December 1998. I joined the Transvaal Rural Action Committee (TRAC) as a volunteer and assisted people to lodge restitution claims to their land through the restitution programme introduced by our new government after 1994. I drove to remote rural areas in seven provinces, going door to door to ensure that people do not miss the deadline. 
     
My community was also one of the beneficiaries of the Land Reform Pilot programme from around 1996 to 1998, and was awarded a Presidential Discretionary Fund grant in 1995. The resilience and persistence of land claiming communities during the 1980s ensured that the land question was on the agenda of the negotiations for a post-apartheid South Africa and gave rural people hope in the new democracy. 
     
Sadly, we later had to take the same democratic government to court to protect and assert the hard fought right to restitution in the face of government corruption and policies that privilege the rights of elites over those of ordinary people. Policy changes such as replacement of the Reconstruction and Development Programme began to strip black communities of their dignity and destroy our hopes for the new South Africa. I see the current TKLA litigation as a continuation of my life-long struggle for the preservation of the African ideals and reality of land rights, dignity, and accountability. 
     
I have respect and appreciation for legitimate traditional leaders participating in the promotion of community development in our rural areas. But traditional leaders cannot refuse to be held accountable and be allowed and encouraged by government to abuse their positions. I personally followed the proceedings of the Baloyi Commission of Inquiry into the financial affairs of the Bakgatla Ba Kgafela, and witnessed the recalcitrant behaviour of Mr Nyalala Pilane, the former Kgosi, in the witness box. I also observed the dignified role of one of his peers, Kgosi Mahumane, who was a member of the Commission and asked thoughtful questions and made considered observations. 
     
My grandparents and great grandparents fought these battles and managed to bequeath land dignity and family cohesion to me and my siblings despite the enormous odds against them. To abandon these struggles for land and democracy is to abandon my own self. These ideals, traditions and rights have sustained my family and my community and are part of our legitimate customary law. They have made me who I am. Should we fail to preserve them and pass them on to the next generation we doom our society to despair, corruption and disintegration.

RESOURCES

🖹 The ten year review of the National Development Plan makes for compelling reading: it provides a comprehensive analysis of the current state of our country.

🖹 The SAHRC convened inquiry into child health in the Eastern Cape held between April 2021 and March 2022 found 116 children died of severe acute malnutrition. The Commission has asked the government to submit reports within a specific time on how they were going to address child malnutrition in the province.The report comes hot after reports that two Eastern Cape moms killed their children and committed suicide, presumed to be poverty related causes: EASTERN CAPE PROVINCIAL OFFICE: SAHRC PROVINCIAL INQUIRY INTO CHILD MALNUTRITION AND THE RIGHT TO FOOD EC/2122/0409

⚖️ CASA in particular welcomes the attempts to get a model anti slapp legislation

Anti-Slapp Model Law launch: the Centre for Applied Legal Studies (CALS) would be honoured to have your presence and expertise in exploring how the law can protect activists and the right to freedom of speech. This event will take place on 5th of December 2023, in Johannesburg. The venue will be confirmed shortly. According to organisers, this “event comes at a time where activists across the world face growing repression from public and private entities. 

🌐 FAIME‘s vision is a world in which Indigenous communities and other mining-affected communities and organizations can access credible, competent and trustworthy experts

The experts profiled in the FAIME database are capable of working with respect for Indigenous and local knowledge, and are available to assist communities and organizations in addressing new and existing mining projects and policies affecting their territories and wellbeing. This includes supporting communities in giving or withholding their consent, and upholding their right to say no.

 

💧 This wet season in Tunisia (October-March) ended with the poorest yield in years. The water level of the dams barely reached 30%. For weeks, images and videos of virtually empty water facilities, cracked earth, and yellow fields, along with talk of drought, thirst, and aridity, have been sweeping the media and social media. Apocalypse now, or soon. Since fall 2019, Tunisia has experienced four years of continuous drought. At the beginning of 2023, officials in the Ministry of Agriculture, Water Resources, and Fisheries (hereinafter the Ministry of Agriculture) delivered frequent statements emphasizing the gravity of the country’s “water deficit” and forewarning of “water emergency” measures.

Read here on Tunisia’s Water Deficit: How Did the State Help Create Thirst?

Moses Cloete serves as the editor at large of this edition. Unless otherwise indicated the writing and presentation of the Bulletin is by Hassen Lorgat. Marta Garrich helped with additional editing and layout of the newsletter. Simo Gumede is responsible for the members and partners database management.

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