A hardscrabble patch of South Africa, disputed between black farmers and tribal leaders working with platinum mining interests is legal ground zero, in a battle to loosen the chiefs’ grip on communal lands.
Land rights are a hot-button issue ahead of elections in 2019 as the African National Congress (ANC) moves forward with a constitutional amendment aimed at a more equitable distribution of land, including possibly expropriating land from whites without compensation.
That prospect, evoking the chaotic land grabs that wrecked the economy of neighbouring Zimbabwe, has grabbed headlines and alarmed investors despite repeated pledges by President Cyril Ramaphosa that things will be different in South Africa.
A related issue is also sensitive for the ANC, however: the plight of poor blacks vulnerable to forced evictions in tribal lands, because of a system of property rights, that dates back to the colonial era, before apartheid.
The “Homelands” make up only 13% of the land but are home to a third of the population, 17 million blacks, mostly subsistence farmers working tiny plots. Tribal councils control these areas, often determining who gets to farm or where cattle is grazed but also access to resources like water and minerals.
Transferring that control to those who occupy or work the land would have major repercussions both for companies who have been negotiating mining rights with the tribal chiefs for decades and for politicians who count on the chiefs to deliver the local vote.
“The implication is that such communities should be the negotiating body rather than traditional councils,” said Johan Lorenzen, a lawyer at leading human rights firm Richard Spoor Inc Attorneys.
“That would create significant legal risk for all the deals already struck with traditional councils,” Lorenzen said.
It may be an idea whose time has come, as protests spread and support for the ANC steadily declines in tribal areas.
At issue in the case before the Constitutional Court is a deal agreed with the council of the Bakgatla tribe to allow Pilanesberg Platinum Mines (PPM) to evict farmers in order to expand its open-pit mine onto tribal land.
Activist David Pheto, one of the claimants, told Reuters the community was not fighting mining, but forcible evictions.
“If mining must take place we need consultation and consent because we are the owners,” he said.
The court is expected to rule on the case late this year.
The platinum wealth below Wilgespruit farm, 160 km (100 miles) northwest of Johannesburg, is clearly more valuable than what’s on top – tangled thorn scrub with almost no grass, a sign of overgrazing often seen on communal lands, set against the backdrop of jagged hills.
The elderly Grace Maledu, the lead claimant, and her neighbours say their families pooled their money to buy several hundred hectares in the area a century ago but did not get a title deed because of laws that restricted black property ownership.
Instead, the farm was registered with a white government official who held it on behalf of the tribal chief, according to court papers filed on the farmers’ behalf by the law firm Lawyers for Human Rights.
“We planted maize there, but it has been chopped up for the mine,” said an agitated Maledu, pointing beyond a steel-ringed fence to the mine where massive trucks threw up clouds of dust.
PPM, a unit of unlisted Sedibelo Platinum Mines, declined to comment on the case until after the court rules.
But in court filings, PPM and a partner company formed by the tribal council take the position that the Bakgatla community controls the farm and adjoining properties communally, with the chief as custodian.
The company says 24 people have already relocated voluntarily, with R25 000 ($1 875) to each and their huts moved to nearby farms.
The case also tests whether the deal with the tribal council trumps a 1996 law – passed during Nelson Mandela’s presidency – protecting people on communal land.
“This case could be the game changer,” said Aninka Claassens, director of the University of Cape Town’s Land and Accountability Research Centre.
“If they had obtained a title deed then they would be in a similar position to white owners who require a mining company to sign leases with them,” she said.
Companies like Anglo American Platinum and Impala Platinum may find they are ahead of the curve, having renegotiated tribal deals with wider participation and transparency after significant losses from protests.
Impala Platinum’s Marula mine lost 10 000 of almost 80 000 ounces of production to protests that included road blocks and assaults on vehicles and people going to work. Falling platinum prices have added to the pressure.
Amplats says it has secured peace around its Mogalakwena operation, the world’s largest open-pit platinum mine and the Anglo American unit’s main cash spinner.
“You can never underestimate the expectations around communities and the need around communities,” Amplats’ Chief Executive Chris Griffith told Reuters.
The tribal authorities are generally seen as an important political base of the ANC, cultivated especially by former president Jacob Zuma, a traditional Zulu.
The chiefs warned the ANC in July it risked conflict if it included the homelands in its land reform drive. In a speech to supporters, Zulu King Goodwill Zwelithini even evoked the 19th century Anglo-Zulu war.
“What I want you to know about our history is that the issue we are faced with now is very similar to the one our forefathers were faced with,” he said. “This will be the second clash.”
In a hastily arranged meeting afterwards, Ramaphosa assured Zwelithini that the 28 000 sq km (10 810 sq miles) under his control would not be touched.
Former president Kgalema Motlanthe, who chaired a panel on land reform, has accused the chiefs of acting like “village tin-pot dictators”.
Senior ANC officials say the party is determined to make a change in the homelands, including rolling out deeds to residents, partly because the chiefs are not delivering the vote.
Election results in rural areas in North West province which includes the Bakgatla community and in Limpopo province where mining deals have fueled unrest show the ANC is losing support.
Backing for the ANC in these areas in 2011 ranged from 75 to 84%, according to official data. Nationally the party bagged 63% in 2011, falling to 54.5% in 2016.
In 2016, its support in Mabideng, where the Bakgatla live, fell to 54% from 75% in 2011. In Mogalakwena, on the restive northern limb of the platinum belt, it dropped to 64% from 84% over the same period.
“If you put these voting patterns together with evidence showing people are angry with the way chiefs use their land powers, there is a clear pattern,” said Steven Friedman, a professor and political analyst at the University of Johannesburg.
Zolani Mkiva, General Secretary of Contralesa, the umbrella group for the traditional leaders, says homeland residents risk falling into a debt trap if they own property.
“People will use it as collateral to access finance. And then what happens? People will have to cede land back to the finance institutions,” he said.
Economists argue that it is precisely this state of affairs that traps people in poverty and leaves them vulnerable to eviction, however.
Critics of the ANC’s land reform policy say that instead of seizing land from whites, the party should focus on reform in the homelands, which could turn millions into property owners virtually overnight.
“The government a century ago prevented us from having title deeds,” said Pheto, the activist. “To get the same treatment from our own government, it’s a disgrace. The chiefs are not the owners of the land.”