The government is resisting the impoverished 4 000-strong Richtersveld community’s claim for the restitution of mineral rights in the vast stretches of diamond-rich coastal land currently held by state-owned miner Alexkor, citing changes in the mining rights regime.
If the Land Claims Court agrees, the Richtersveld community may lose its seven-year legal battle to win restitution of the land from which they were forced in the 1920s, mineral rights and R2,5-billion in compensation for the diamonds extracted and mining-related environmental damage.
The government is proposing “just and equitable compensation” of R64,7-million for loss of alluvial digging rights, ceded to white landowners at the time of diamond discovery, and the market value of the expropriated land. It says community needs could also be addressed if Alexkor applies for new-order mining permits, as these require social and labour plans.
At the heart of litigation in Cape Town is whether the Land Claims Court can order the return of mining rights under the Land Restitution Act, or whether these fall within the jurisdiction of the minerals and energy minister, in terms of the 2002 Mineral and Petroleum Resources Development Act.
Mining houses have until May 1 2009 to apply to convert old-order mining rights, covering both land and minerals, to new 30-year mining permits. Approval criteria include social and labour plans, broad-based black economic empowerment and environmental rehabilitation.
The law’s enactment was accompanied by frequent references to the Freedom Charter’s principle that “the people shall share in the country’s wealth”.
In court papers the government says the Land Claims Court cannot hand back mineral rights or order the minister to grant prospecting or mining rights. “As long as the old-order mining right is in existence, the minister is not empowered to grant any right to the plaintiff … Even if the mineral rights could in law be restored to the plaintiff [Richtersveld community], there would have been no guarantee that the plaintiff would be granted a prospecting right or a mining right.”
This position changes only if the Richtersveld community has “a bona fide mining partner” and if Alexkor renounces its old-order mining rights. Then the community could apply for preferential rights. However, Alexkor maintains restitution is not feasible unless the community obtains new-order mining rights.
Advocate for the Richtersvelders, Wim Trengove, maintained full restitution was possible without compromising either law: “We do not accept the proposition, this court is denuded of any power and needs to ask the minister.”
On Monday businessman Cyril Ramaphosa testified that his wholly black-owned investment company, Shanduka, had agreed to a joint venture in which the Richtersveld community would have a 90% stake. Shanduka would be first in line to exploit diamond reserves believed to exceed the state’s valuation of R91-million.
Alexkor last year incurred losses of R6,9-million against a R499 357 profit in 2003 from its mining operations.
Settlement has been elusive. The government has spent R10,3-million on legal costs, while R4-million is available for the current litigation, Minister of Public Enterprises Alec Erwin told Parliament. There is no provision for a financial settlement.
“It’s been a long trek,” said Richtersvelder Katrina Phillips. “So many people have died. My husband was one of the first fighters. He died and I took his place in 2002.”
Legal uncertainty has also sparked tensions between the community and mineworkers. Said Richtersveld Community Property Association chairperson Willem Diergaardt: “There’s a lot of stories going around. It’s not that we want to get rich, but to use the mine for development.”
Earlier, Oom Gert Domroch (75) told the court of how fences blocked Nama cattle and sheep herders, forcing many to work in the mines and their kitchens.
“I was here before. I’m happy you received me with such a friendly face,” Domroch told Judge Antonie Gildenhuys, who four years ago dismissed the claim.