The South African Police Service (SAPS) is accused of standing by while an armed gang invaded the Nuco Chrome mining property in North West Province on multiple occasions and made off with truckloads of ore for processing off site.
In May, the North West High Court evicted the group responsible and interdicted it from removing run-of-mine material, or from mining the site.
Despite this, the theft of material continued, with the police allegedly standing by.
Nuco went back to court earlier this month and came away with a contempt of court order with an instruction for those responsible to be imprisoned for 60 days.
Two companies cited as respondents – Bashiga ba Raphafana and Bashiga ba Raphafana Holdings – were ordered to pay R200 000 each as punitive sanctions for their contempt of court. The police were also ordered to comply with the previous court order.
Failure to act
Nuco is back in court this week seeking an order to compel the police to comply with the previous order, at risk of imprisonment for those officials deemed to be violating the order – which include the Minister of Police, the SAPS provincial commissioner, and the local station commander in Phokeng in North West province.
They are accused of failing and refusing to carry out the contempt order to assist the sheriff in executing arrests as ordered by the high court.
An incident sheet provided to Moneyweb shows seven separate incursions onto the mine property.
In all seven cases, charges were laid with the police in Phokeng in North West, but apparently nothing was done to stop the incursions or arrest the perpetrators.
The problem seems to have started when Elias Setuke had himself installed as traditional leader or ‘Kgosana’ of Lefaragatlhe village in North West, along with a retinue of followers who now call themselves the royal family.
In March, the recognised traditional leadership of the Bafokeng won an urgent interdict against Setuke and his followers to stop them “inaugurating, installing or in any way recognising” Setuke as traditional leader of the village.
Setuke and his followers, operating under the two companies cited as respondents, are accused of unlawfully entering the Nuco Chrome Mining property and removing run-of-mine material.
Fourteen respondents are cited in the court application, several of whom are said to have threatened Nuco staff with firearms and physical harm.
In an affidavit before the court, Nuco director Linda Butler is asking for Setuke and three other respondents to be held in contempt of court, and for prison sentences for Setuke and one Oscar Ratsie – both of whom have already been the subject of a court order prohibiting them from entering the mining property or loading and removing run-of-mine material, or from processing it.
None of the 14 respondents has filed a reply to the court application by Nuco.
Butler says the problems started when she received a letter from Andrew Pheto of Pheto Development and HR Shared Services on June 9, 2020, purporting to act on behalf of the Setuke family.
The letter was an invitation to set up a meeting and discuss possible collaboration with landowners and community members regarding to the Kookfontein Mining Project, which forms part of Nuco.
She says this was a clear attempt by Setuke and his followers to insinuate themselves into a new mining project and claim rights and ownership for themselves.
A search of the Companies and Intellectual Property Commission (CIPC) database shows that the two companies bearing the name Bashiga ba Raphafana were registered shortly thereafter.
There are an estimated 2 928 tonnes of chrome ore (with platinum group metals) on stockpile at Kookfontein, which Butler says Setuke and his followers are attempting to steal.
If Nuco processed this material it could expect to generate approximately R658/t or R1.025 million profit before tax, says Butler.
No fear of police
Based on court evidence, it seems the group has no fear whatsoever of the police, who have failed to intervene despite multiple cases being filed of mine property invasions and theft of material.
The reason for the police inaction is a mystery, says Butler, but the reasons will hopefully be fleshed out in court this week.
The local sheriff was told by police in Phokeng that they needed a legal opinion on the matter before they could render any assistance.
Moneyweb reached out to Pheto, who says he is still acting as an advisor to Setuke and his followers, but says he was unaware of the impending court action. We also reached out to Setuke via phone and message but had not received a reply by the time of publication.
On May 28, the company employed to provide security at the mine was notified that a 17-ton truck with an additional 17-ton hopper was unlawfully loading ore.
The truck was followed and intercepted, and then driven to the SAPS in Phokeng. The next day it was scheduled to be driven to a location for unloading of the material. On the way there, the mine security company was confronted by Ratsie and his 13 bodyguards. The truck was eventually allowed to proceed to the Bafokeng Civil Works site for unloading, but this time was met by Setuke and his bodyguards. They demanded the release of the truck back to the driver.
Butler claims in her affidavit that Setuke and his bodyguards used threats of violence, by wielding firearms to intimidate members of the SAPS escorting the truck.
The truck was handed over to Setuke’s men. Immediately after this incident, the mine’s security employee, Kopral Dibobo, was forced off the road while driving back to the office. He took refuge in a funeral that was taking place and managed to hide from his pursuers.
Butler says there are currently about 50 people illegally occupying the mining property and theft of material has occurred since the aforementioned court orders were granted.
“To have to go to court to get the SAPS to act against criminality and to have to go back to have orders to compel granted and still have no joy is a costly exercise. We have also been hampered in starting operations. Not only has our security team been attacked, but of late the teams that have been sent in to fence off areas have also had to delay operations for fear of being attacked.
“The run-of-mine ore continues to be stolen and even when trucks have been intercepted, the Phokeng police have released the loaded trucks and given them back to the criminals.”
Says James Lorimer, the DA’s shadow mines minister: “It’s interesting to note that after literally years of inactivity the police are beginning to show interest in this case.
“Clearly the latest contempt application that would see the minister and the police commissioner jailed for not enforcing previous orders against the mine invaders has got police nervous.
“One has to ask whether it takes a threat to jail the minister to get police to act,” says Lorimer.
“Meanwhile in all this multi-year saga, the Department of Mineral Resources has played no role in defending the lawfully held mining rights, other than a negative role, in delay, obfuscation and possible collusion with the people trying to steal them.”