Good news for Indigenous peoples in SA and foreign investors

According to UN statistics, there are some 370m indigenous peoples living in 90 countries. They are seen as custodians of some of the most biologically diverse territories in the world; they also continue to suffer discrimination, marginalization, extreme poverty and conflict.

Happily, this week has seen triumphant outcomes for two sets of indigenous peoples within South Africa. A Constitutional Court judgment set aside two prospecting licences awarded in September 2006 to Genorah, which holds 63% of Australia-listed Nkwe Platinum. The local community, the Bengwenyama-ye-Maswazi, has occupied the two properties, Nooitverwacht 324 KT and Eerstegeluk 327 KT, for more than a century.

There was practically zero "consultation" - as required by law - by Genorah with the community. The one property was essentially ignored; on the other, a Genorah representative "visited" the traditional leader of the Community, Kgoshi Nkosi, on 3 February 2006, and essentially informed, rather than consulted.

In a "peculiar vein", stated the Constitutional Court, "Genorah‘s environmental management plan was approved two months after the approval of its application for prospecting rights, namely on 13 November 2006". Such a plan is required, prior, as part of a prospecting rights application. The overwhelming impression created by the case is that the community's rights were trampled by huge greedy rodents.

As for the conduct of the Department of Mineral Resources (DMR), the court stated: "This is not the way government officials should treat the citizens they are required to serve". One of the attorneys representing the Bengwenyama mentions "material irregularities" in and around Genorah's purported prospecting rights. This is not good.

In the other case, the Bakubung-ba-Ratheo community triumphed on Wednesday when John Myburgh, senior counsel, signed as arbitrator a 10-page awards document aimed at finally forcing transparent disclosure of the whereabouts of some R500m in cash. The mountain of money (or what's left of it) belongs to the impoverished 33,000-strong Bakubung community.

The R500m or so in cash arose from "monetization" of shares, starting late in 2007, in Johannesburg-listed Wesizwe Platinum. The shares were donated in earlier years, in good faith, by Wesizwe Platinum to the Bakubung. Johannesburg-based Musa Capital teamed up, by the end of 2007, with the Bakubung Traditional Council, estranging it from the wider community. Traditional Council boom box DJ Phologane is directly plugged into the Musa Capital edifice.

Early in 2010, the wider Bakubung finally sued; three costly cases opened up in the High Courts. Musa Capital, led by two US-born gentlemen, Antoine Johnson and William Jimerson, for months waged a campaign to obfuscate and delay disclosing the whereabouts of the R500m in cash. Millions of rands have been spent on lawyers, publicity agents, and various species of disinformation propaganda.

Lawyers for Musa Capital and the Traditional Council first capitulated in the High Court on 22 September 2010, but then failed to disgorge disclosure, as had been ordered by the court. The matter finally ended up in arbitration, where Musa Capital, which lost by a score of roughly 100 to zero, has been given until 10 December to produce countless numbers of bank statements, and endless documentation. Johnson and Jimerson seem to have gone to ground.

The Rule of Law has prevailed, which can only be encouraging for increasingly disheartened foreign investors viewing South Africa's mining scene. Just as important, indigenous peoples have fought good battles and won: no quarter was given. As the UN puts it, indigenous peoples are responsible "for a great deal of the world's linguistic and cultural diversity, and their traditional knowledge has been and continues to be an invaluable resource that benefits all of mankind".

Given the identity of certain Genorah shareholders, it is no surprise that not a single share in Genorah was offered to Kgoshi Nkosi and his community; they were instead treated with contempt. Around the world, indigenous peoples are being dispossessed of their traditional lands. Their livelihoods are persistently undermined.

Kgoshi Nkosi and his people watched aghast as Genorah's huge drill rigs ripped through ancestral burial lands, soccer fields, and, among other ugly incidents, polluted their precious groundwater. As for the other compassionate gang, Musa Capital, it boasts that it is "doing well for our investors while doing good in our communities". Indeed: Musa Capital has spent most of this year fighting off monumental legal challenges from the Bakubung community.

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