A bright future denied: The plight of the mining-affected !Ama people of the Richtersveld.

Leader of the !Ama (Nama) people in South Africa Gaob Martinus Fredericks is forthright when it comes to undoing the wrongs that have been forced on his people in the Richtersveld – a sparsely populated area in the northwestern corner of South Africa.

For Fredericks, his people, and the wider local community, it has been a long and torturous road since 1998 when they made a land claim to force state mining company Alexkor to concede a controlling share of mineral rights to the community. After several court appeals and counter appeals, this land claim was successful, with a 2003 court order enforcing cessation of Alexkor’s majority right. 

The court order came in an era steeped in idealism, with Mandela first at the helm, and then Thabo Mbeki, and a South African government fresh into its work after the world had welcomed the first South African democratic elections of 1994. 

However, the bright promise of restitution for the !Ama people is all but gone after a catastrophic chain of events involving unscrupulous miners and corrupt officials that affected one of the largest land and mineral ‘grabs’ ever seen in South Africa during the dangerous ‘state capture’ era of former president Jacob Zuma. The people of the Richtersveld are now worse off than ever before.

As the elected head of the !Ama Traditional Authority under customary law, Fredericks is the designated tribal leader of all !Ama people in South Africa. 

His mission is to put the pieces back together – to restore the communities’ constitutional rights and to ensure that the mining rights and benefits ordered by the High Court in 2003 are returned to the !Ama after they were ostensibly stolen from under their noses.

Fredericks is steeped in this history of his people. He is exceptionally erudite and an expert in the machinations of company law and political legalese.

A 1998 land claim for the Richtersveld brought the bright promise of restitution for the !Ama. However, it had the reverse effect, sparking a catastrophic chain of events that has left them worse off than before.

But first, he has had to untangle one of the most bewilderingly complicated manifestations of human greed and corruption known to our nascent democratic dispensation. Academic papers have attempted to unpack its complexity, including that of one of South Africa’s preeminent experts in Rural Development and Land Reform Services, Terance Fife, titled the ‘Richtersveld Restitution Implementation’, which “illustrates the complexity, and enormity of the task of implementing the agreement”.

All roads lead to Boegoebaai

As a first step to confront the enormity of the task, on 8 September last year, acting for concerned members of the Richtersveld Communal Property Association (CPA) – otherwise known as the Richtersveld Sida !Hub Committee – Fredericks lodged a dispute against the CPA board.

The dispute, which the !Ama have escalated up the ladder to the national Director-General of the Department of Agriculture, Land Reform and Rural Development (DALRRD), accuses the CPA committee of a litany of illegal departures from the law. These include allegations of financial malfeasance, fraudulent governance, non-compliance with the tenets of the Communal Property Associations Act 28 of 1996 and questionable mining and tender deals that Fredericks says are intended to line their pockets, with no benefit to the community.

Fredericks says that the dispute is tangled in red tape and sits in a stalemate. He alleges various obstructionist tactics by the CPA and political connections. He claims this is a textbook case of state capture that will deny the !Ama people of ever finding restitution. It poses an existential threat to their existence as a community, he says.

Fredericks says that the dispute is tangled in red tape and sits in a stalemate. He alleges various obstructionist tactics by the CPA and political connections. He claims this is a textbook case of state capture that will deny the !Ama people of ever finding restitution.

Fredericks is happy to go on the record that the CPA board has been hijacked by people who not only want to steal the wealth that lies in the ground, but also to secure lucrative tenders. In particular, the construction of a huge hydrogen port at Boegoebaai — a deeply significant ancestral and culturally important piece of !Ama land, and a pristine and eco-diverse coastline.

Boegoebaai has been loudly touted by Gwede Mantashe, Minister of Mineral Resources and Energy, as pivotal to South Africa’s Green Hydrogen Strategy that will pave the way for the country’s Just Energy Transition, as launched at the Cop26 summit in November 2021. As part of the plan, the Boegoebaaiport will apparently “provide an enabling platform for the province to achieve the key frontiers proposed in the 2021 Sustainable Infrastructure Development Symposium South Africa” according to the Global Africa Network (www.globalafricanetwork.com).

The People vs Alexkor

To untangle the issue, it is impossible not to go back to the land claim in 1998 that started it all.

To make the December 1998 deadline announced by the South African Government for the submission of all land claims (as a result of racially discriminatory land appropriation due to the Black Land Act of 1913), the Richtersveld Community lodged a claim in the Land Claims Court (LLC) against the landowner, state diamond mining company Alexkor Ltd.

The community wanted land restitution for 3,000 people living in and around the small settlements of Sandrif, Kuboes, Eksteenfontein and Lekkersing near Alexander Bay. The Community alleged that they had a right to the land based on ownership, and alternatively, an aboriginal title that gave them the right to habitation, cultural and religious practices, grazing, cultivation, hunting, fishing, water trekking and the harvesting and exploitation of natural resources, including diamonds. 

The LCC rejected their land claim. The Court did concede that the Richtersveld people could be constituted as a community in terms of the Restitution of Land Rights Act 22 of 1994. However, the actual land claim was bizarrely rejected because the Court adjudged that the Community were dispossessed of their land in 1925, not because of racially discriminatory legislation or practices, but for the simple fact that diamonds were discovered there — a cruel and contorted piece of legal logic.

The community went to the Supreme Court of Appeals (SCA) in 2001, and the SCA reversed the LCC judgment, holding that the community had a right to the land akin to common law ownership (Roman-Dutch) through customary indigenous rights.

Alexkor also contended, astonishingly, that when the Richtersveld community were dispossessed of their land a second time — as a result of the pre-apartheid 1913 Land Act — it was not the result of racist laws or practice.

This chop and change in court decisions reveals the challenge they have grappled with over the years with indigenous land rights. They have learned – via precedent – that normal rules of statutory interpretation cannot be followed when interpreting and adjudicating customary traditions and norms.

“The court has to rely on evidence of the traditional values of land use to determine the rules connected to land tenure,” wrote Gerrit Pienaar, then Professor in Property Law at North-West University, in a paper on the subject in 2012 – ‘The Methodology Used to Interpret Customary Land Tenure’.

However, Alexkor was not done. They tried a new tactic in 2003. The mining company appealed the decision at the Constitutional Court. This time their argument went all the way back to when the Richtersveld community originally lost their land to the British Crown in 1847. Their argument, contentiously, was that the community’s right to own the land was terminated when the British annexed it. In other words, Alexkor’s lawyers seemed to be saying, “when they stole your land, you lost the right to it fair and square!”

As they say in the classics, with all due respect to the many good lawyers in this world, the law can be an ass.

Alexkor also contended, astonishingly, that when the Richtersveld community were dispossessed of their land a second time — as a result of the pre-apartheid 1913 Land Act — it was not the result of racist laws or practice.

Court judgements

Acting for the RVC at the Constitutional Court in 2003, human rights lawyer Henk Smit took advantage of this unfathomable logic – that such arcane colonial laws can exist in a modern state, built on the most advanced and egalitarian constitution on the planet – and the Concourt upheld the SCA judgement in favour of the Richtersveld Community.

The 2003 judgement was hailed as a landmark win for indigenous land rights. It came after a long and hard fight in which a tangled clump of often contradicting legal clashes as the tenets of Western law conflicted with indigenous beliefs and land use. But more hardship lay ahead.

In 2007, restitution and future prosperity were further secured. The people celebrated the Land Claims Court Order of 12 October (Case Number 151/1998) that confirmed a Settlement Agreement between the Sida !hub Communal Property Association (CPA), Alexkor and the Government of South Africa (the Department of Public Enterprises) as valid and binding.

The 2003 judgement was hailed as a landmark win for indigenous land rights. It came after a long and hard fight in which a tangled clump of often contradicting legal clashes as the tenets of Western law conflicted with indigenous beliefs and land use. But more hardship lay ahead.

As Terance Fife says in his research, the agreement was for “the return of land, mineral rights and financial compensation. A number of entities were created as an outflow of this agreement.”

But the structure of these entities was so complex, and so filled with loopholes, that it was doomed to fail. There have even been suggestions that this was done deliberately to open up cracks where corruption could take root and flourish.

As Fredericks says: “It was signed. It was agreed between Alexkor and the community. But 17 years later, we are still trying to unscramble the eggs.”

The first problem was, according to Fredericks, the CPA was meant to have been constituted according to the CPA Act 28 of 1996, but he says it was not, which is why he is challenging the CPA about the elections of board members, and agreements with political officials and mining companies that go against the principles of good governance and the will of the people.

Fredericks contends that because the CPA committee now includes government officials and ward councillors, it has been hijacked: “They are not there to serve or benefit the community. They are there to line their pockets from dodgy deals struck on a national and regional level between members of the CPA, mining officials and politicians.”

The second problem was that the 2007 agreement called for an overly complex framework and structure to implement the Deed of Settlement. This, Fredericks contends, was ripe for mismanagement from the start.

The Deed called for two trusts to be set up: the Richtersveld Community Trust and the Richtersveld Investment Trust. The latter would oversee a company called the Richtersveld Investment Holding Company, and the former would oversee the Richtersveld Self-Development Company, Richtersveld Agricultural Holding Company, Richtersveld Mining Company (RMC), Richtersveld Environmental Rehabilitation Company, and the Richtersveld Property Holding Company.

But there were red flags. Several experts were suspicious of such a top-heavy structure. Community members were warned not to accept the deal, but those tasked with negotiating the deal went ahead, particularly after they were wooed with gifts and favours, Fredericks alleges. 

Also, several claimants opposed the Settlement because they saw it as a major compromise from what had originally been claimed from Alexkor and the SA Government. The Settlement had now broadened from the !Ama claim to a wider community claim.

Fredericks points out that this latter transition has grown into a major issue because now “any person can come from anywhere and come to the community and achieve the same rights as the people in the community”.

A deal with the Devil

The 2007 Deed of Settlement was signed in a fancy hotel in the presence of then-Public Enterprises Minister Alec Erwin. As Fredericks says, “The community leaders sold out and accepted the deal after they were wined and dined and flown around the country.”

On paper, the terms of the agreement sounded incredible. Portions of land would be transferred to the community. Alexkor would pay the community R200 million via a capitalisation from the State. The mariculture and agriculture assets of Alexkor would be transferred to the community.

A sum of R190 million would be paid as reparation over three years to one of the above companies incorporated in the Community Trust on behalf of the community. There would be a R50 million development grant, and R45 million would be paid as compensation for Alexkor’s occupation on transferred residential properties over ten years.

A township would be established at Alexander Bay and environmental rehabilitation of areas damaged by decades of mining would be enforced. Companies were set up to carry out each of these tasks. Alexkor would retain the marine mining rights, but these would be under the control of the Joint Board of the PSJV, as would the land mining rights of the Richtersveld Mining Company representing the community, who would hold the terrestrial rights in a 51% to 49% majority in their favour.

However, as reported above in the dispute, declared in September 2023 by Fredericks and other concerned CPA members, the CPA that allegedly represents the Richtersveld community has allegedly been insidiously captured, and the PSJV hijacked, over the years since they came into being. Even to the point that the equity split was inexplicably reversed and the community found itself the junior partner in the partnership. The Richtersveld Mining Company relinquished its 51% majority to a minority 49%.

The dispute papers lodged in September by Fredericks point to a litany of irregularities in the way the Richtersveld CPA is governed, such as discrepancies between the number of voters registered and the actual number of votes counted for the election of committee members. These are serious allegations.

The accusations become increasingly worrying, such as how some members elected to the CPA committee are allegedly delinquent directors, having failed in previous entities to conduct themselves as directors, to which they are lawfully bound. They claim that the election of two ward councillors and a representative of the Northern Cape DALRRD is tantamount to a form of state capture. And not only that, one of the committee members is allegedly deceased.

The dispute papers lodged in September by Fredericks point to a litany of irregularities in the way the Richtersveld CPA is governed, such as discrepancies between the number of voters registered and the actual number of votes counted for the election of committee members.

Martinus and the signatories to the complaint accuse the CPA committee of illegally changing the original 2001 mandate to have a quorum of at least 60% of the members to having only 200 people, ignoring the constitutional rights of up to 3,000 community members.

There are many objections in the document. The most telling lies in Section 6, which accuses the CPA of outright fraud in the form of “unauthorised decisions made by the CPA”, including “the issuing of contracts to outside parties to run the commercial farms with no benefits to CPA members or community.”

They point out an agreement the CPA made with Coptra Diamond Mining company to mine diamonds on Commercial Agriculture farms. They point out the continued support of the “dysfunctional pooling and sharing agreement (PSJV) between Alexkor and the Richtersveld Mining Company with no benefits to the community despite their 49% share in the PSJV”.

They further point out the unauthorised legal agreement between the CPA and the Northern Cape Provincial Economic Development Agency and the unilateral signing of the access agreement by the Committee Chairperson for the planned Boegoebaai green hydrogen mega-port project. This was allegedly done without the approval of members.

Delinquent Directors

The issues remain unresolved after CPA Committee members walked out of a meeting facilitated by the Northern Cape DALRRD in January this year. Fredericks says he has written letters to provincial and national DALRRD officials, including the Director-General, but has had no response.

Since 2007, the community has grown more impoverished, while the benefits of the agreement have not flowed to the community. Fredericks is furious at this betrayal.

“We can no longer watch what is happening there. It’s one huge mess. The worst has been between last year and this year. Commercial farms have been turned into mining dumps. The DMRE has approved mining in areas put under protection for conservation.”

“Over time it has become tangled into a web of deceit and lies. It has become unbelievably complicated to extricate. But it all comes from that Deed of Settlement. If you take away the legal pillar that it stands on, the whole thing collapses.” – Martinus Fredericks.

An alarming development has been that two of the companies under the Settlement, the Richtersveld Property Holding Company and the Richtersveld Mining Company have been placed under business rescue, due to what he calls fiduciary sabotage by dodgy directors.

Fredericks is extremely worried because of what he calls “delinquent directors illegally appointed to the board without the correct protocols of company law” who could theoretically sell off the mining rights for the entire community should a drafted business plan be approved by creditors. “Guys from outside have managed to get the directors themselves to put their companies into business rescue so they can cash in big time.”

For the company to sell the mining rights, however, “you still need the minister’s consent under the Mineral and Petroleum Resources Development Act No. 28 of 2002, but that does not fill me with hope. You can see that state capture can easily result in a way to sidestep that,” says Fredericks. 

However, Fredericks is building up a body of evidence that he hopes will put an end to the skullduggery.

“In terms of the Companies Act, you can only become a director of a new company if the entity you come from has fulfilled its fiduciary duties, such as audited Annual Reports. It’s easy for us to single out the delinquent directors. Some of these people just rotate from one entity to the other, which flies against the law.”

“But over time, it has become tangled into a web of deceit and lies. It has become unbelievably complicated to extricate. But it all comes from that Deed of Settlement. If you take away the legal pillar that it stands on, the whole thing collapses.”

The solution?

“The Deed of Settlement needs to be rescinded. The 2007 court order needs to be set aside. But the reality of this is that without huge resources and legal skill, it will be very nearly impossible.”

While Fredericks and the !Ama Tribal Authority tackle a monstrous problem, the people of the Richtersveld live with the lie of the promise of a brighter future that never transpired.