South Africa: `Travesty of justice' for community opposed to Australian-led mining project

September 21, 2021
Opponents of the Xolobeni project frequently become victims of intimidation and assault. But most incidents go unreported out of fear of retribution. Photo:

A South African court has found five men not guilty of an armed assault on people in a community resisting an Australian-led titanium mining project on the Eastern Cape's Wild Coast.

The verdict, at the Mbizana District Court in the Eastern Cape on August 31, was denounced as a “travesty of justice” by the Amadiba Crisis Committee (ACC), which unites communities on the Wild Coast against open-cast mining.

The five men had been charged with attempted murder, assault with intent to do grievous bodily harm, pointing and shooting of firearms, and theft. The victims of the so-called “Christmas shootings” were a group of male residents of Mdatya village, who were attacked on a December evening in 2015 as they walked home from a ceremony.

The attack was the culmination of a week-long campaign of intimidation, aimed at community members who had coordinated a blockade of the proposed mine site since April 2015. The blockade was successful in preventing access by consultants trying to carry out an Environmental Impact Assessment (EIA) for the Xolobeni mineral sands project, which proposes to strip mine a 22-kilometre stretch of the coast.

Violence and intimidation

Given the stakes, tensions in the area have simmered for years. Episodes of violence are frequent, and opponents of the Xolobeni project frequently become victims of intimidation and assault. But most incidents go unreported out of fear of retribution, and the police are not trusted.

In 2016, ACC chairperson Sikhosiphi Bazooka Radebe was assassinated. Senior officers in the South African Police Service were accused of “intentionally impeding” the investigation.

After the Christmas shootings verdict, the ACC — which stands for “real development of our community” and against imposed “development” — issued a statement saying: “This had been a five-and-a-half-year long process. There have been 15 court appearances. The defence lawyer managed to postpone the case again and again. It ended in a travesty of Justice.

“We went to the court to get justice. But if justice is not being served, what is the point of going to the court.”

The Xolobeni mining project is led by Australia’s Mineral Commodities Ltd (MRC) and its South African subsidiary, Transworld Energy and Minerals Resources (initially registered in 1993 in Britain as Barleyway PLC and 56% owned by MRC).

The EIA that the communities are resisting is necessary for the proposed project to go ahead.

From the start, the project has been heavily backed by the Department of Mineral Resources and Energy, the Department of Trade and Industry — rumoured to have provided seed funding to MRC before the project had even been approved — and a handful of local political and economic elites who stand to profit enormously.

The plans have been opposed by most local residents, backed by a network of local, national and global environmental and anti-mining NGOs, scholars and journalists.

Triple threat

Collectively, opponents recognise the triple environmental, social and economic threat that mining poses to area, which is highly biodiverse, has a rich cultural heritage and, crucially, provides the basis of subsistence livelihoods, as well as food, for the local population.

Since organising in 2007, the ACC, the main opposition movement on the ground, has argued that the project will cause displacement from land and coastal areas, deplete local water supplies, and contaminate land and waterways, destroying the community and its sustainable way of life.

Despite this sustained opposition, MRC continues to hold on to its stake in the project, even after pledging to divest its shares following Radebe’s assassination.

Instead of divesting, MRC has tried to distance itself from controversy over the project. Following MRC’s failure to win a R14.25-million defamation case it brought against activists, attorneys and a social worker critical of the Xolobeni project, the company fired controversial former CEO Mark Caruso.

Shortly thereafter, MRC appointed Zamile Qunya as a non-executive director. Qunya, who has strong ANC ties, is an equally controversial figure. He is Director of MRC’s South African subsidiary, Mineral Sands Resources, which owns the Tormin Mineral Sands mine in the Western Cape. He is also a shareholder in a black empowerment company called Xolobeni Empowerment Company (XolCo), which stands to profit enormously if the project goes ahead.

At the time XolCo was founded, Qunya had been serving as CEO of Amadiba Adventures, a European Commission-funded community eco-tourism enterprise that had grown to thrive, winning the Presidential Award for best community tourism enterprise in 2004. By 2007, when MRC’s mining right application was submitted, however, employees of Amadiba Adventures alleged that Qunya had deliberately run the company into the ground, with the aim of destroying viable economic and employment alternatives to mining.

Since then, Zamile and his brother Basheen have been implicated in incidents of violence against community members opposed to mining. In 2015, both (along with traditional community chief Lunga Baleni) were the subject of an interdict against threatening or assaulting community members opposed to mining, as a result of their roles in the 2015 Christmas attacks.

In fact, anti-mining campaigners face constant violence, although it is rare for these incidents to end up in the courts. As the ruling on August 31 showed yet again, justice is seldom delivered.

Crisis of integrity

The “not guilty” ruling was as shocking as it was disappointing, pointing to a crisis of integrity in South Africa’s legal system.

The trial dragged on since 2015, despite clear regulations stipulating that cases in regional courts must be resolved within six months of the entering of an initial plea. The lag was attributed to the fact that whenever the case came to court, proceedings had to be postponed — more than 10 times — invariably due to stalling tactics deployed by the defence.

In April 2021, this pattern continued, as one of the five accused — who happened to be an employee of the MRC-owned Tormin mine — failed to appear in court. At first the defence lawyer claimed this client had been in a car accident. Moments after a hushed phone call in the courtyard, however, the story changed to one of illness and a hastily obtained doctor’s note was presented to the court.

The trial was postponed only for a day. This delay, however, meant the proceedings would be rolled over to August, buying time for the defence to build its arguably weak case.

Most of the defence witnesses (nine out of 14) were close family members (brothers, sisters and mothers) who predictably testified that the accused were with them at their homes at the time of the attacks.

The defence, lacking solid evidence of the innocence of the accused, embarked on a character assassination of the victims. The thrust of the argument was that the victims had been the actual aggressors and that the accused had merely acted in self-defence.

The defence argued that one of the victims, permanently disabled as a result of the attack, had been seen travelling short distances on foot without the aid of his walking stick.

Also notable throughout the trial was the prosecution’s obvious lack of concern with the interests of the complainants. Since the start of the trial, no one on the prosecution team had once initiated contact with any community members or their legal representatives to hear their version of events in December 2015.

Furthermore, the prosecution refrained from challenging any of the unfounded assertions made by the defence. The State remained silent, for example, when the defence argued in April that because one of the victims could not identify the specific model of the gun that had been pointed at him — and because no gun had been found in the possession of that accused, a full day later when he was finally tracked down by police — the victim must have been lying.

Nor did the prosecution query the contradictory testimonies of two of the accused in July, when one claimed that the group of anti-mining community members had numbered more than 200, while another asserted (before changing his story upon being prompted by his attorney) that there had been fewer than 20.

Most perplexing and arguably damaging of all, however, was the State’s decision on August 31 not to make a closing argument at the end of the trial. When offered the chance to do so, the prosecutor declined, instead requesting that the court base its decision on the evidence adduced by witnesses.

This is indeed what the court did, but not until it had lambasted the prosecutor for failing to make a closing argument on behalf of his clients. Of this decision, the magistrate observed: “The State does not believe in its case.” That the prosecution would not give closing arguments, he asserted, indicated “the State did not want to make itself a fool in front of the court”.

Before delivering the “not guilty” verdict, the magistrate referred specifically to the account of an eleventh-hour witness called by the defence.

This witness, presented as “neutral” with regard to mining, had reported having seen “two groups fighting with sticks”, but “did not see anyone injured”. For the magistrate, this was a clear refutation of the plaintiffs’ claims that they had been victims of an attack.

In reality, however, this witness was known by community members to be the chair of a pro-mining “development committee” in Mdatya, one established by the five accused. The witness did not only lie about his neutrality. He also failed to mention that he had driven two of the victims to the Ntabeni Clinic in KwaZulu-Natal to be treated for their injuries.

If the State had bothered to investigate, the prosecution could have led with this evidence.

The State’s failure to submit closing arguments predictably also led to discrepancies between the evidence and the court’s findings. For example, the court declared it had found a local headwoman (traditional leader) to be a “liar”, despite the fact that she was not part of the case and had not even appeared in court.

The court also repeated a baseless accusation made by the defence that one of the plaintiffs had exaggerated his injuries to gain the sympathies of the court. This contradicted evidence submitted to the court in the form of detailed medical records that showed clearly the extent of permanent physical damage suffered by the victim.

Earlier in the year, moreover, the court had challenged the accused over inconsistencies in their narratives, asking whether there were “over 200” who walked around threatening mining supporters during the day, or “10?”. The magistrate even remarked (somewhat tongue-in-cheek) that the five defendants must have been “very brave indeed” to have withstood such an attack.

In the judgement, however, the only accusations of inconsistency and dishonesty levelled were against the plaintiffs themselves.

Then, before announcing his final decision, the magistrate delivered a final blow, stating that the complainants had used the court “incorrectly” to further their own anti-mining agenda. As such, he concluded, the case should never have been prosecuted.

The significance of this statement should not be underestimated, not least because it directly and incontrovertibly contradicted the expert legal opinion articulated by Vuyani Genu, Chief Prosecutor of the Mthatha cluster of the Eastern Cape.

When approached by the defence to throw out the case in 2019, Genu had replied: “Having considered your representations in this matter and having read the docket herein, I am of the view that the State has a very strong case against the accused and I therefore direct that the case must proceed.”

Nor of course, should the importance of the ruling itself be dismissed.

Justice denied

In a context where the murder of Radebe remains unsolved after five years, the State’s consistent failure to vigorously prosecute pro-mining assailants speaks volumes. It signals that supporters of contested mining projects can carry out campaigns of intimidation, using violence with impunity, under the nose of, and in some cases, with the assistance of the State.

This phenomenon has been documented extensively by human rights and environmental justice organisations across South Africa.

It also reflects a shift in strategy on the part of the State, away from open confrontation with communities opposed to mining that are likely to attract international attention and scare off investors, toward a more hands-off approach.

In realising its land grab to secure the titanium sands of Xolobeni, the South African government is relying increasingly on political developments on the ground to generate public support for the mining of Xolobeni to proceed.

For these efforts to succeed, the credibility not just of individuals, but of communities and the wider movements they belong to — and by extension, the viability of the sustainable and equitable economic alternatives to mining they advocate — must be undermined in the public’s eye.

This ruling no doubt assists that goal.

Implications for the movement

So what does this travesty of justice — and the lack of integrity it highlights within South Africa’s legal system — mean for allies of the ACC, and countless other organisations seeking to use the courts to defend territory and livelihood against state-led land grabs?

Academics like myself have an obligation to expose the nefarious methods of this so-called “developmental state” as it seeks to strip rural communities of their resources, their heritage and their constitutionally guaranteed rights to define their own development futures.

This is a project that is relevant to all social scientists teaching and researching in the South African context, whether we are working in fields such as geography, sociology, economics, politics, history or anthropology, or in more interdisciplinary fields like development studies.

Scholars of law in South Africa are also duty-bound to scrutinise and raise the alarm over how the State is increasingly using legislative measures to dispossess rural communities of their resources and rights.

In light of the ACC’s 2018 court victory asserting the community’s right to say no to mining, it is no wonder that the government is now manoeuvring to circumvent the 1996 Interim Protection of Informal Land Rights Act.

Recent amendments to the Traditional and Khoi-San Leadership Act 3 of 2019, for example, will be instrumental in opening the way for co-opted traditional leaders, and specifically Chiefs as custodians of customary land, to cut deals with mining companies without obtaining community consent.

Journalists also have a role to play, to follow and shine an international spotlight on the government’s behaviour. They can contribute by highlighting how the state is using the courts to undermine citizens’ rights to developmental self-determination, and to circumvent customary law, in the name of a “national interest” that is sure to benefit only a small handful of elites.

Of course, activists belonging to social/environmental justice movements also have a major role to play. They can pressure the State to improve its efforts to capture and prosecute perpetrators of violence against opponents to mining.

It speaks volumes that not a single arrest was ever made by the South African police since the murder of Radebe, nor of countless other environmental defenders, including Mam Fikile Ntshangase.

The track record of the National Prosecuting Authority is similarly dire, with critics arguing both institutions are “politically compromised”, their officials conflicted between fulfilling their constitutional mandates, and imperatives of delivering findings that could stay prosecutions, in line with political objectives.

Another related task for members of social movements and NGOs thus lies in exposing relations between individuals in key state departments (mainly, of mineral resources, trade and industry, and transport), foreign and domestic mining companies, the judiciary and the Black Economic Empowerment partners that often spring up overnight claiming to represent rural community interests from faraway cities.

Of course, the MRC deserves special attention as well. For a company that claims to be committed to “supporting the sustainability of the natural environment” and “the people who rely on that environment”, the company is clearly determined to push the project forward by whatever means necessary.

Given the systemic nature of collusion in South Africa between political and mining interests, and allegations of corruption within the judiciary, activists, particularly those operating at a safe distance abroad, can play a vital watchdog function.

Through coordinated efforts, allies might be able to usefully support the ACC in its efforts to defend heritage, land and livelihood. Whether the integrity of South Africa’s legal system can hold up against the assault being led by a mining-captured state, is another issue entirely.

[Hali Healy is a senior lecturer in the Department of Anthropology and Development Studies, University of Johannesburg. An earlier version of this article appeared in the Daily Maverick.]

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