Richtersveld Community & Alexkor Deed of Settlement: progress report

Meeting report

Richtersveld Deed of Settlement implementation: update by Department of Public Enterprises
Ms Morongwa Mothengu, DPE Director: Mining, gave some background to the protracted implementation. In December 1998, the Richtersveld Communities instituted a land claim against the government and Alexkor
In 2003, after protracted legal proceedings the Constitutional Court ruled in favour of the Richtersveld communities. In 2007, government, Alexkor and the claimant communities reached a settlement agreement (Deed of Settlement) which was made an order of court. The provisions include:
- Establishment and functions of the Richtersveld Communal Property Association (RCPA) and its structures;
- Pooling of mining assets to form the Pooling and Sharing Joint Venture;
- Establishment of the Alexander Bay Township;
- Transfer of properties to the claimant communities;
- Capitalisation of the mining operations and;
- Environmental rehabilitation obligations.

Ms Mothengu said in terms of properties transferred in March 2018 a task team led by the Northern Cape Provincial Government was established to oversee the handover process including a review of required resources manage the municipality services; due diligence on the engineering infrastructure and a conclusion of the transitional agreement stipulated in the DOS. The task team included officials from the National and Provincial Cooperative Governance and Traditional Affairs, Public Works, Public Enterprises, Namakwa District, Richtersveld Local Municipality, Education, Rural Development and Land Reform and Alexkor.

Due to the delays in the settlement, in an October 2015 meeting with Departments of Rural Development and Land Reform (DRDLR) and DPE, the RCPA leadership proposed that the outstanding R45 million be paid directly to the beneficiaries. This would require an amendment to the Deed. In a meeting in May 2016, the community gave consent for the government to initiate amending the Deed to effect payment to the beneficiaries. However there were opposing views on how the money should be disbursed which delayed the disbursement of the R45 million. Following meetings convened by NCOP in November 2017 and February 2018, DRDLR and DPE were tasked with the responsibility of regularising the Richtersveld communal property association. During 2018, a number of attempts were made to organise election for the new communal property association. After numerous failed attempts to conduct elections, DRDLR recommended that the RCPA be placed under administration. The court process is currently underway

Richtersveld Land Restitution Claim: update by DRDLR
Mr Kgotso Moeketsi, DRDLR Northern Cape Provincial Head, reported that the Select Committee meeting of 20 February 2018 directed DRDLR that the Richtersveld CPA be put under judicial administration if an Annual General Meeting (AGM) to elect a new CPA Executive is not convened by end of March 2018. The DRDLR appointed Elections Company of South Africa (ELECSA) to resolve the CPA leadership dispute. However to date no elections or AGM have taken place due to non-cooperation of some CPA committee members and their attorney who fought DRDLR – Northern Cape instead of helping to find a solution (see document).

On 3 December 2018 the DPE Director General resolved to put the CPA under judicial administration. This was due to the many disputes within the community and at the same time, the implementation of the deed of settlement is hindered because there is no “legal” CPA Executive Committee to assist in the implementation of the resolutions of the community including payment of the R45 million

Mr Moeketsi said that the successful post-settlement support of the Richtersveld community requires a united Richtersveld community and buy-in by all stakeholders.

Richtersveld-Alexkor Handover Task Team: update by Municipal Infrastructure Support Agent
Mr Henri Marais, MISA Acting Northern Cape Provincial Manager, spoke about the agreement establishing the Task Team and the objectives of the Task Team in its Process Plan. MISA’s role is to:
- Convene and chair monthly Task Team meetings;
- Address outstanding issues towards handing over of Alexander Bay Township;
- Prepare progress reports;
- Support Richtersveld Local Municipality and Alexkor in drafting a Service Level Agreement on the conditions for the handover of Alexander Bay Township to the municipality;
- Facilitate the process for the technical handover of the township to the municipality;
- Facilitate an economic development indaba for the Richtersveld and Namakwa communities.

The key points for the technical handover of the township to the municipality include:
- Transferring of services infrastructure and assets to the municipality.
- All services to be transferred must comply with municipal standards.
- Each municipal service has a land use implication. Legal transfer of land requires a SPLUMA compliant Spatial Development Framework and Land Use Management System (LUMS). The current absence of these is holding back the “technical transfer”. The accuracy of land descriptions and the needs and requirements of the intended beneficiaries must be aligned and verified.
- To ensure a legal process and minimize later costs for rezoning and to ensure the long term viability of the municipality, a “Process Plan” has been developed to guide processes and procedures.

Mr Marais said primary activities of the Task Team include:
- Convene monthly Task Team meetings for activities for handing over of Alexander Bay Township.
- Develop Process Plan for land transfer, long term economic development / sustainability and post-mining economic development plan.
- Support development of Service Level Agreement between Alexkor and Richtersveld Local Municipality.
- Support development of a MoA between Alexkor and Richtersveld Local Municipality on transfer of services.
- Initiate review of Richtersveld Spatial Development Framework (SDF) to align with SPLUMA and develop a Land Use Management System (LUMS) and Scheme.
- Initiate Economic Indaba (to include the entire Namakwa District).
- Develop proposals for an Alexander Bay post-mining economic development plan.
- Align erf numbers of Alexkor Erf Transfer Schedule for Alexander Bay to the Surveyor General approved diagram to transfer correct properties to identified recipients.

On the way forward, Mr Marais said signing and implementation of the SLA should be by 1 July 2019. The SDF review process would be speeded up to be completed by April 2020. Secure funding for the development of a Land Use Scheme by May 2019. EIAs completed for licensing by April 2020. Proceed with transfer of properties to the CPA pending outcome of CPA regularisation process. Then finally proceed with implementation of Process Plan from Dec 2019 until July 2020.

Discussion
Mr E Mlambo (ANC, Gauteng) noted the complaint about the Northern Cape Office of the Premier not doing what it is supposed to be doing and not cooperating with the Richtersveld community.

Mr Kgotso Moeketsi, DRDLR Northern Cape Head, replied that Ms Botha is the law adviser in the Office of the Premier. The people he was referring to are in the Office of the State Attorney which the department goes to when it wants to take something to court. But he is happy that Ms Botha is present because she can assist in talking to the state attorneys to fast track the Richtersveld community process.

The Chairperson said it might be proper that the state attorneys be summoned to appear before the Committee.

Ms Gladys Botha, Head: State Law Advisor: Office of the Premier, replied that the state attorneys are not located in the Office of the Premier. They are located in the National Department of Justice. She agreed with the Chairperson that they must summoned to appear before this Committee.

Ms Z Ncitha (ANC; Eastern Cape) asked Ms Botha to clarify her role in this so that when they call those who are not cooperating, the Committee is clear about the role played by the Office of the Premier in this matter.

Ms Botha replied that the role of the Office of the Premier in terms of the Intergovernmental Relations Framework Act is actually to do coordination because national, provincial and local governments are involved. When it comes to the legal framework of CPAs, the role of the Office of the Premier is to advise the department. MISA spoke to the agreements that were prepared by their office. The municipality requested them to assist because there are no legal advisers in the municipality, and so they are assisting. Therefore, the role they play is to assist with the legal aspects of the Richtersveld matter.

Ms C Labuschagne (DA, Western Cape) thanked them for the feedback, but said nothing is any clearer since the 2016 Committee oversight visit. This Committee has a problem with the Deed of Settlement as items were more exact on mining than agriculture and rural development settlement. This was one of the biggest problems. That was the Committee’s assessment when it went to that community. This was one of the root causes of the conflict in that community. One of their recommendations in their Committee Report was to review the Deed of Settlement. But obviously the department decided not to do that for whatever reasons. What she is hearing today is they are continuing to try to fix something that is unfixable. The spirit and the purpose of the Deed of Settlement for the Richtersveld community is to have a sense of property and secure economic development in that region to ensure people have jobs and have a future for their children. However, when the Committee visited the area in 2016 there was nothing of that, and two years later the situation is still like that

Ms Labuschagne asked if it is possible for the CPA to be regulated by the administration intervention as the CPA does not exist. What is the administration going to administer in law? What will be the influence of the administration on all these programmes and processes? For how long will the community be run by government? If the CPA has been put under administration, how many people will be guaranteed jobs, economic security and by whom and what jobs? The bottom line is that the Deed of Settlement did not put together a good settlement for land reform for rural development and agriculture.

Ms Ncitha appreciated the presentation but they “are nowhere” in dealing with the challenges the Committee identified. It looked as if they are moving in circles with this – whether deliberately or not. There is no reason a legal CPA has not existed since 2012 – yet they are government. The Committee is now told this project is going to be put under administration. The Richterveld community has benefited nothing at all since 2007. This matter is more serious than what they are saying now. The department cannot resolve the matter of transferring the benefits to those communities because it is unable to implement the Deed of Settlement; it is dragging its feet. The Committee needs to look at the matter very seriously and come up with a resolution because the presentations are not helping the Richterveld community.

Mr Mlambo said that sitting in board rooms would not help the Richterveld community because the infighting by people on the ground shows lack of leadership in dealing with this matter. It is not fair because beneficiaries are dying. The Committee should ensure that come the end of 2019 this matter is resolved.

Mr J Sefako (ANC, North West) appreciated the presentations, but it is a sad story that they have to listen to. He went on the oversight visit to Richtersveld and witnessed the persistent poverty in that area. His expectation today was to hear a report about what was going to lead them closer to the alleviating the poverty. The diamond deposits in that area will at some point be depleted and will be no longer there.

Mr Sefako said the problem is that he does not hear in the presentation when it talks about the property assets of the arable soil which is very rich in that region; it is silent about the tractors and equipment that can help the community plough the land to produce food. There is no report on the tracing of such assets. The presentation repeatedly talks about the lack of CPA directors. The CPA trust is very difficult because they resolve matters by going to court and spend a lot of money paying lawyers while poor people are dying on the ground. The Committee is now at the tail end of its term and sadly nothing has been done for the people of Richtersveld.

Mr J Parkies (ANC, Free State) believed that as a Committee of Parliament they have the authority to provide and give direction. They are not going to disassociate from the leadership they have to provide. The direction they need to give is what kind of intervention should happen because the collective view of the Committee is that the progress is zero for the conditions that affect the people in that community.

Mr Parkies suggested that the Committee should have a five-minute caucus on this matter so that they can give clear direction on what needs to happen with the Richtersveld community going forward.

The Chairperson agreed to caucus. He referred to the question asked by Ms Labuschagne on why government is going to court to have a judicial administration over something that does not exist. Looking at page 23 of the CPA constitution clearly outlines the principles. The last time the Richtersveld community presented, this same Committee asked that the department go and assist with the establishment of the CPA and to put in administration, and the Committee gave timeframes. If the department appoints an administrator it must be somebody from outside who has the capacity to implement the things recommended by the Committee.

Mr Kgathatso Thlakudi, DPE Deputy Director-General: Manufacturing Enterprises, replied that it is important for Members to note that energy and time has been spent by DPE in the Richtersveld. They have felt the pain of the Richtersveld people and they have been dealing with this matter for quite some time, and a lot of money has been misappropriated in this whole process. What they have found is that funds from the investment trust are used for litigation and that causes problems going forward. The reality is that people are benefiting from this chaos. As a result, the Department finds itself constrained.

Mr Thlakudi said the Deed of Settlement is an agreement between government and the Richterveld community. It has been a legally intensive process which went all the way to the Constitutional Court and the Richtersveld community won their right to gain their land back. Therefore, government cannot unilaterally review and amend the Deed of Settlement. Some of the efforts they have undertaken in engaging with the Richtersveld community were to exactly get the review going. But DPE could not do it itself when the community structures are in the state they are in. That is why they need to get an administrator on board to help them as a counterpart in doing the work the Committee has asked DPE to do.

Mr Thlakudi replied on the point that the CPA does not exist, saying that the CPA in terms of the law is an appropriate structure to deal with all these issues like the land management. What has been missing from the CPA is the ability to hold the Annual General Meeting (AGM). Government only facilitates the holding of the AGM, and if the CPA finds it difficult to hold an AGM, government is constrained. Members should understand the challenges government is facing because a lot of taxpayers’ money has been used to try and sought out these matters.

Mr Thlakudi pleaded with Members that they caucus so as to give further direction to DPE and DRDLR. However, without a counterpart in the form of the administrator to negotiate and agree with, DPE will be back here in a year to tell the same story. This state of affairs is the product of certain people with both political as well as business interests in that part of the world using funds intended for development in that community. The officials are very serious about their work and they have achieved a lot – but not exactly what is required for the Richtersveld community.

The Chairperson said the Committee will take a five-minute break to caucus on the matter and come up with a clear direction going forward.

After the caucus, the Chairperson asked Mr Parkies to explain the Committee resolution on this matter.

Mr Parkies appreciated that the departments and stakeholders concerned are part of this meeting. The Committee is very serious and concerned. The Committee’s major concern is the conditions of their people and it is on them as Members of Parliament to uphold, defend, advance and fulfil the needs of poor people. As a Committee they are sensitive and alive to the dynamics at play in this whole matter. They hope and believe that all stakeholders are immaculate in whatever that is going on in this poor community. The decision they want to communicate is:

The Committee is aware of the progress it has made in legislative development which will empower the state organs involved to resolve the matter and the decision to elevate this matter to another level to speed up this process.  The Committee requests humbly that DPE furnish it with the application which has been lodged. Parliament needs to engage that process at another level to prevent delays in the court process. Parliament as a component of the state will write a formal letter with authority to the authorities who are another component of the state. If the courts delay in taking decisions on matters of this nature, one can confidently say they are failing poor communities and justice exists only for the rich. That process with take us in the proper direction of having an administrator and that administrator must have resources mobilised as the life of this particular administrator might not be safe due to the dynamics at play and the business interests.

Mr Parkies said this Committee directive is not open for discussion and hoped that it will be carried through whether they are back or not back in Parliament. However, this work will be reflected in the Committee Legacy Report so that the Committee that will take over in the Sixth Parliament will continue the work they have done because the dilemma they have is that they have only two to three weeks to finish their work as a Committee. It is sad that this Committee will not be concluding this matter.

The Chairperson said the Legacy Report will give a clear indication to the Sixth Parliament Committee how to continue on this matter. It took the Committee a long time to understand and process the matter of the Richtersveld community, and on behalf of the Committee they apologise to the Richtersveld community for that. In her view some of the issues involved in Richterseld community should be part of the Zondo Commission of Inquiry.  

The meeting was adjourned.