A group of Richtersvelders is trying to stop the Land Claims Court from making the land settlement signed on April 22 with Public Enterprises Minister Alec Erwin an order of the court.
After more than 10 years of legal battles fought against the government for restitution as well as land and mineral rights, an agreement was signed between the community and Erwin, effectively making the community a minority shareholder of present and future mining operations. The deal includes R190-million compensation for diamonds valued about R6-billion that have been mined in Richtersveld in the past.
The state had spent an estimated R50-million fighting the Richtersveld community and its land claim.
The agreement, signed by four members of a 15-member committee with Erwin, was allegedly done in great secrecy. The community and its lawyers were unaware that an agreement was going to be signed.
Richtersvelders have been represented by the Legal Resources Centre (LRC) for more than a decade. A month after the agreement was signed, the LRC withdrew as the community’s legal representatives. The centre said it was not possible to continue representing the community since the trust relationship between it and the community’s elected representatives had broken down.
”We regret that the relationship between the community’s elected committee and the LRC doesn’t have the trust necessary for the LRC to effectively represent the community,” the national director of the LRC, Janet Love, and Henk Smith wrote to the community when terminating their relationship.
The letter said the committee’s decision to sign the agreement with the department was not the reason for the LRC’s withdrawal. ”Without any reservations we support the principle that a client is not tied to the advice of their lawyer — We are, however, of the opinion that it’s not in the best interest of the community that trust between the committee and its legal team has broken down,” the LRC wrote.
‘Resistance movement’
Emily Smith, the secretary for the newly formed Richtersveld Action Committee (RAC), said the RAC is a ”resistance movement representing the majority” of just more than 3 000 people living in this arid part of the Northern Cape bordering Namibia.
Smith and her committee said the agreement signed was done without a mandate from the community, there was no quorum when the agreement was voted on and that the signed agreement was ”too vague”. The RAC objects to the fact that the agreement signed was not the deal discussed.
”We don’t understand why this agreement was signed in secrecy behind the community’s backs and behind the backs and against the advice of the community’s lawyers who have been representing us for many years,” Smith said.
”The committee didn’t have our mandate to sign the agreement and we’re suspecting that they were bribed, forced or bullied into signing,” she said. ”We want our lawyers back and we want to know why Alexkor [a diamond-mining parastatal] has a 51% share and the community a 49% share in the final agreement — we won this case in the Constitutional Court and now we’ve signed ourselves into a partnership with a bankrupt company [Alexkor].”
Smith and her committee will register as an interested party with the Land Claims Court before it formalises the agreement at the end of this month. ”We’ve been waiting for a very long time for our government to acknowledge our claims. We’re prepared to wait longer so that this agreement is fair — something is wrong when our own business is done in secret,” she said.
The RAC has met its legal representatives, Lawyers for Human Rights, and will file its affidavits by September 17 to halt the courts for finalising the agreement.
”This is our land and our future. Erwin came to us in June and said there’s great urgency for us to now accept and sign the deal because Alexkor is bankrupt. And now we sit with an agreement with a bankrupt company,” Smioth said.
Financial loss
Alexkor has been operating at a massive financial loss for many years. Last week, Finance Minister Trevor Manuel tabled a Special Adjustment Estimates Bill to cover unexpected demands made to support Alexkor.
Despite Alexkor’s financial woes, the government has been unwilling to shut it down because it would cost the state more than R250-million in environmental costs if it were to shut down. The government has been prevented from shutting down the land mining section of the company because the settlement with the Richtersveld claimants requires that the company continues operating.
Manuel has been approached for R44,7-million to cover operational expenses until the end of March 2008.
According to the agreement signed, a pooling and sharing joint venture will be formed in which Alexkor and the community will hold a 51% interest and 49%, respectively. A six-member interim joint board — three appointed by Alexkor and three appointed by the community — will be responsible for the implementation of the settlement.
Love said the agreement signed does not make business sense.
”The agreement establishes a joint venture but the detail of how it will function and how it will account to the shareholders — the community — is not spelled out. The interim board will sort it out. Here you have a community who owns land and yet they have no recourse or right to be consulted on key issues,” Love said.
Her major concern is the community’s rights over further exploration. The community cannot enter equity arrangements with other parties — it has to work with bankrupt Alexkor.
”The community is expected to sink all their eggs into one basket, which is mining. The consequence of that is risky and a burden to the community. The agreement ties the hands of the community and limits its freedom to act,” she said.
The community has been reluctant to cut a deal with Alexkor and has made it clear people prefer to get involved with De Beers.
Erwin has said he is to make a ”major announcement” on the future of Alexkor once the settlement agreement has been made an order of the court.
Signed ‘under pressure’
Willem Diergaadt, the chairperson for the Richtersveld Sida !hub Communal Property Association and one of the signatories of the agreement, said this week the committee signed against the lawyers’ advice because ”they had to”.
Diergaadt added: ”We were told by the minister that Alexkor will be closed down and all 800 employees laid off; all the animals and all its assets sold. We weren’t interested in buying a dead business. We couldn’t wait for everything to go to hell. Now we have our land and we don’t have to look up to anybody any more for anything.”
About the LRC, Diergaadt said: ”We don’t talk about this thing with the LRC — it’s a sore thing. We went to Pretoria and signed because we’ve waited for more than 12 years. Our lawyers refused to go to Pretoria and said we should wait.
”If the lawyers were with us, we wouldn’t have signed and there would have been no agreement. I’m happy with our agreement. But now our community is divided and it’s the lawyers’ fault that we’re divided. Our lawyers misjudged us — they didn’t see us as people who have grown. We’ve learnt a lot in this process and we can do things by ourselves now.”