Thuli Madonsela this week visited the Bapo Ba Mogale community to hear grievances about the North West government's alleged mismanagement of money.
Mining giant Lonmin has mined platinum on the community's land since 1994 and has in turn paid mining royalties to the community. Lonmin on Thursday said it had paid R370-million into the account.
But the state of the community – no water reticulation, dirt roads and large-scale unemployment – does not reflect the benefits of the platinum-rich land on which it lives.
The Bapo people do not know how much money there is in their trust account, which they call the "D-account".
The North West government manages the community accounts and affairs through an administrator, based on the premise that the community does not yet have a lawful traditional council to lead it. Community members on Wednesday expressed their anger at the administrator who controls their affairs, saying the government had failed to hold the administrators accountable for the expenditure of community royalty money. They also called for a forensic audit of their accounts.
Madonsela, meeting the community's representatives in a face-brick hall, told them she had asked the province to provide her with all documentation related to the community's account three weeks ago, but had received nothing to date. She said an independent audit of the account was a top priority.
Community members also said they were concerned that they had no legally elected traditional council. They suspect the North West government of obstructing the election of a lawful council to allow the continued exploitation of community accounts by administrators.
In the meeting, community member Elvis Mabale became angry and marched to the front of the hall to address Madonsela: "There is non compliance by the North West government in its governance of the Bapo." To loud applause, he denounced the ad hoc structures set up to govern community affairs and called for a legal traditional council to be reinstated: "Everyone must back off, including the administrator," he said.
The community's suspicion of the North West government and its administrators is not unfounded.
In December 2009, community elections were held and a traditional council was lawfully established. The North West government, then under premier Maureen Modiselle, did not gazette the new council and its legitimacy lapsed, leaving the community without leaders once again.
Said community lawyer Hugh Eiser: "The government refused to acknowledge the new authority because it didn't suit it. It knew it would not be able to manipulate it for its own purposes."
Eiser said the election of a lawful traditional council was the only way to solve leadership issues.
The community said it had asked the North West government to summon the electoral commission to host new community elections. But, said Eiser, the government had not made any arrangements to date, despite the fact that most other traditional communities had held elections in September last year.
There are also allegations of government administrators and office bearers squandering the community's cash. The community alleges that, in 2010, Makepe Kenoshi – then the chief executive in the community's administrative offices – attempted to spend R486-million of the community's money on a property development. The community stopped him from spending the money on the grounds that he was not authorised to sign agreements on its behalf.
In another instance, said Freddy Mogale of the Bapo ba Mogale royal family, a decision was made – without the input of the royal family or community – to build a royal palace with community funds. The palace buildings have remained unfinished and cost the community at least R52-million. Mogale said that Thabo Lerefolo, the previous administrator, had failed to produce financial statements pertaining to the expenditure on the royal palace.
The community's gripes with the North West government are not their only complaints.
One man at the meeting, wearing a gold shirt with red stripes, spoke angrily about the open-cast mines and the blasting that coats the area in dust. The issue of open-cast mines is another example of why the community needs a unified traditional authority. In 1990, a group of 20 men took a resolution to allow open-cast mining to continue on community land. The tribal resolution, dated September 11 1990, said there were 15 000 men in the Bapo tribe, but in the meeting, only 20 men voted unanimously to continue the mining. There was no mention of women. The decision affects about 35 000 Bapo people today. The agreement was signed by Bapo chief Edward Mogale, who is still chief today amid contention (see "An expensive and controversial system of rule").
At the end of the meeting, Madonsela summarised the issues the community had raised. She identified the biggest problem as their lack of accountable governance and said the appointment of an administrator was problematic. "Our experience with the administrators is that they are divisive when the whole point is that the administrator puts a governing system in place and then leaves."
She also said she would call for an independent forensic audit of the community's financial affairs, an investigation of the issue of open-cast mining in the area and have a royal family tree drawn up to identify the rightful traditional leaders and chief. Madonsela said that she wanted the matter resolved by the end of October.
The North West provincial government reiterated its belief that minerals were the major cause of traditional leadership disputes. It said that strict treasury procedures were adhered to before the funds allocated to traditional communities were released, which minimised the chances of mismanagement.
Heidi Swart is the Eugene Saldanha Fellow in social justice reporting, sponsored by the Charities Aid Foundation, Southern Africa
An expensive and controversial system of rule
Twenty-two million South Africans live under traditional leadership. It is an old and controversial system of rule that has cost the taxpayer millions.
Lineage primarily determines who is in charge and there is a strict hierarchy. The system operates in all provinces, except for the Western Cape.
Traditional communities are divided into clans, each of which is ruled by a headman or headwoman. Clans constitute a traditional community. A senior traditional leader has authority over all the headmen and headwomen. Senior traditional leaders, in turn, report to a king or queen. A kingdom consists of various traditional communities, each with their own senior traditional leader and headmen and women.
In 2003, the government introduced the Traditional Leadership and Governance Framework Act, which states that the senior leader must appoint 60% of a council that will govern the community. This 60% consists of ordinary community members, royal family and the headmen and women of the clans. The other 40% is elected by the community from their ranks.
The leadership governs using customary laws established over centuries. Under the new Act, traditional leaders must bring customary law into line with the Constitution.
Customary law governs how individuals are treated and how decisions are made that affect the community. These laws stipulate, for example, procedures that must be followed if the community wants to sell a portion of land, or enter into a business agreement.
Customary law can be used by the chief to impose fines or punishment on individuals. With the recent contestation of the Traditional Courts Bill – a law that attempted to couch customary law within the formal legal system – customary law and its potential to erode human rights was widely criticised. Women’s rights in particular are thought to be under threat and a number of groups have made submissions to Parliament citing examples of heavy fines and unfair discrimination. These include taxes imposed on mourning widows and forcing impoverished communities to pay for the chief’s private expenses, such as legal costs or a private vehicle.
Traditional leaders earn salaries. In its annual recommendations of 2011/12, the independent commission for the remuneration of public office bearers suggested an annual salary of R927 319 for a king and R170 096 for senior traditional leaders. The commission recommended an upper annual salary limit of R71 644 for headmen and headwomen.
With an estimated 7 219 headmen and women throughout the country, the commission estimated that the salaries of these leaders would cost the state about R517-million for the 2011/12 financial year.
At the time of going to print, there was still no comment from the national department of co-operative governance and traditional affairs on whether the salary recommendations had been implemented, or what the current salaries for traditional leaders were.