KOPANO FORMATION COMMITTEE Enquiry: Aubrey Langa Mobile: 076 1584 045 P O Box 176 Email: langaaubrey1@gmail Mahwelereng ................................................................................................................................................... Date: 15 December 2014 The Public Protector Polokwane Attention: Mr Mingha Cc: Mr Aaron Kharivhe Sir, Re: Matters to investigate in terms of section 93 of the MPRDA At the ADR hearing held on the 11 December 2014 as chaired by your good self, it was resolved that you will monitor proceedings regarding the process of instituting the section 93 directive, based on numerous alleged contraventions or non-compliance on the part of Ivanplats/Platreef regarding its mine development project on our communal and state land. At the said hearing a document dated the 1 December 2014 was handed over to you, which contains a request made by Kopano to the RM of DMR: Limpopo Region, Mr Aaron Kharivhe, to conduct investigations pursuant to establishing if there is “a contravention or suspected contravention of, or failure to comply with provision of this Act [MPRDA]”. It was proposed that proceedings would unfold as follows: (i) Conduct an in loco inspection of project area, to verify or refute the allegations made; (ii) Conduct paper trail investigations to verify or refute the allegations made. Phase 2 of the proceedings would entail issuing an order that the mining operations be suspended or terminated and giving such other instructions in connection therewith as may be necessary, if the RM as the authorised person finds that a contravention or suspected contravention of, or failure to comply with any provision of the MPRDA has occurred or is occurring on the mining operation area. The thrust of Kopano’s complaint to the Public Protector is that the RM has conducted himself in an unfair manner when approached by Kopano with allegations of contraventions or non-compliance on the part of Ivanplats, focusing on events that occurred and is occurring from the 30 May 2014 to date. Herein Kopano will make a flirting reference to the contraventions which occurred between June 2013 and 30 May 2014, during which period Ivanplats was not only preparing submissions in support of the mining application it had lodged but was simultaneously continuing with prospecting activities that included sinking a shaft in order to extract bulk samples. Kopano submits this information as an integral part of these proceedings and to highlight aggravating circumstances. A further ground of complaint is that through the unfair conduct Ivanplats was and is continuing to be improperly advantaged over the rights and interests of the community, which rights are in respect of this commercial mine development principally protected by the IPILRA (Interim Protection of Informal Land Rights Act, 1996) and departmental policy directives including the recently released State Land Lease and Disposal Policy (“SLLDP”). In the circumstances, Kopano frames matters to be investigated as follows: 1. Non-compliances that occurred after the mining right was granted; 2. Non-compliances that occurred after the execution of the mining right; and 3. Outstanding issues from the prospecting phase that have bearings on the mining right. Non-compliances after the mining right was granted 1. Ivanplats as the mining right holder is obliged to comply with section 25(2)(d), which provides that the company “must comply with the relevant provisions of this Act, any other relevant law and the terms and conditions of the mining right”. And, according to the Letter of Grant (LoG) issued by the DG on the 30 May 2014 granting the mining right to Ivanplats, “failure to comply may result in the withdrawal, suspension or cancellation of the right in question”. Suspension of mining operations is what is sought at this point in time, pursuant to the section 47 administration action, as per the objectives to promote efficient administration and good governance that are stipulated in the Promotion of Administrative Act, 2000. 2. The main contravention at this juncture was non-compliance with Condition 5.3 of the LoG relating to the B-BBEE transaction. Because the intricacies of this matter is detailed in the attached document (See Annexure A: xxx), I herein highlight only the following: a. The main bone of contention is that Ivanplats refused to comply with IPLIRA as relevant law when electing community representatives for the transaction, leading to creation of an illegitimate structure that signed off the shareholding of the community. b. The election of the illegitimate structure also involved election fraud that entailed Mr Malose Elias Kekana (a representative of Ivanplats) and an auditor representing Ernst & Young auditing firm colluding in common purpose to misrepresent the legitimacy of the election by allowing Mr Elias Malose to pass off as an official of the DRDLR. c. The elections were not free and fair as eligible community members were systemically and actively excluded from the process, notably by: i. meetings not being held at neutral venues where any community feels free and safe to go, ii. actively chasing away from the venue known activists against non-compliances by Ivanplats, and iii. beating up of activists. [The chasing away incident occurred at the Ga-Kgobudi election venue, which is video recorded. The activists were assaulted and their properties damaged at the election venue of Sekgoboko by Ivanplats security personnel because they were reportedly instructed by Mr Elias Malose Kekana to prevent the assaulted activist to re-enter the venue in order to bring proof that Ivanplats want to sell the whole 22% equity allocated to the community whereas the community is entitled to a ring-fenced direct minimum 10% free-rider shareholding in the enterprise. Ivanplats B-BBEE transaction offering during the elections was an indirect shareholding that is warehoused in an opportunistic intermediary called BEECo that is not mandated by the community to represent it and agreeing that Ivanplats vendor finance the 22% in exclusion of the ring-fencing principle provided in term of IPILRA]. d. Ivanplats, in circumventing a directive given on the 8 May 2014 by the DRDLR regarding the prescribed procedures to follow when electing community members charged with the responsibility to represent the community in its corporate engagement with it, took an executive decision to instigate Kgoshi L.V. Kekana to establish an election process that is not only parallel to and in contradiction with the one Ivanplats agreed to at the 8 May 2014 meeting but the one that it knew very well that it was unlawful in terms of IPILRA and the guidelines provided in the DMR: Guideline of Consulting with Communities as well as in Item 2.6 Community Development element of the Revised Mining Charter. e. Kgoshi L.V. Kekana is not empowered by IPILRA, which governs all aspects of and all major decisions concerning a commercial development on communal and state land, to initiate consultation meetings pursuant to taking of tribal resolutions. This is the role and responsibility of the developer, according to Item 24 of the SLLDP. Because the elections for community representatives held mainly on dates 13 -15 June 2014 was initiated by Kgoshi L.V. Kekana, this renders the whole election process fundamentally flawed owing to the fact that the Kgoshi was ultra vires in initiating the elections. Kopano also points out that the DMR had when issuing the 15 February 2012 directive picked up as an issue this role for the Kgoshi and indunas, based on the principle of conflict of interest that is apparent in the role especially when the role results in elections of community members that are aligned to partisan interests of the Kgoshi. The DMR would therefore be contradiction itself if it now accepts as bona fide and legitimate the TAC structure that is elected under the impugned principle. f. For the RM to find that Ivanplats was disingenuous and purely in pursuit of unlawful self-interests when claiming that the B-BBEE transaction is governed exclusively by the MPRDA and that IPILRA has nothing to do with the B-BBEE. As it is now, Kopano managed to get the DRDLR to secure the ring-fenced minimum 10% shareholding in the enterprise, which the community is entitled to in terms of IPILRA. (See Attachment B: Letter from DDG: DRDLR). Kopano submits that Ivanplats not only failed to comply with section 25(2)(d) of the MPRDA when purporting to satisfy Condition 5.3 of the LoG but did so in an unethical manner by: • intentionally and deliberately submitting to the DMR incorrect, inaccurate and misleading information; and • submitting a transaction deemed a window-dressing exercise or fronting practise according to Chapter 4 of the Code of Good Practise in that Ivanplats in the transaction: used opportunistic intermediaries, who inhibited the community from negotiating at arms-lengths on a fair and reasonable basis, the terms and conditions of the B-BBEE transaction; inhibited the community from direct shareholding in the enterprise; manipulated the elections of community representatives in order to ensure that only proponents of the project are elected; and the elected members who became trustee have limited knowledge of the enterprise and industry owing to not having not even robustly participated in public meetings and stakeholders’ meetings that took place over the past two and half years. 3. The above are some of the matters for the RM to investigate pursuant to immediate suspension of mining operations, followed by considerations of these contraventions or non-compliances as not forming grounds for withdrawal or cancellation of the mining right. Non-compliances after the execution of the mining right Relating to Impact on Graves 4. Ivaplats has commenced full force from the 26 November 2014 with mine operation activities in contravention of the term and conditions of the mining right regarding protection of national heritage resources as provided by the NHRA, 1999. 5. The term of the mining right is explicit in stipulating that the mining is “excluding areas comprising of graveyards, built up areas and protected areas”. This stipulation means for example that there cannot be a drill rig in a residential street, amongst houses. Similarly, there cannot be a drill rig around and amongst graveyards. 6. Condition 5.4 seeks to amplify the term by stipulating that “the mining right will not include the area [not a site] covered by graveyards or any graves that occur in the same vicinity. A sketch plan that depicts such exclusion shall be submitted 10 Days prior to execution”. As highlighted, emphasis is on the area rather than on the site of an operational activity. As such, distance from the site of the graveyards is not the issue; the issue is that a drill rig or a shaft operation must be found next to or surrounded by graveyards that are within sight from the layman’s perspective. Kopano’s complaint is that the site where the shaft sinking operations are taking place is next to and surrounded by ancestral burial grounds (the preferred term than graveyards because the latter is associated with proper administration and management by the municipality), many of which are within 500m blasting buffer radius and are thus disturbed or can potentially be damaged by ground and air vibrations emanating from the blasting operations within the box-cut. The burial ground within which the grave of the late Mr Makgetha is found is within 30m from the box-cut, and the burial ground within which the graves of the Menu family are found is within 100m from the box-cut. But as I pointed out at issue regarding the location of graveyards is distance as measured by metres and centimetres but the yardstick is that the operations must not be within ordinary sight. According to an approved EMP, which regulates the distance between mining listed activities and graveyards, Ivanplats stated that there are no any graveyards within the “distance of 1km from the area”. Though it is not clear whether the area mentioned is the project area or operational are it does not matter as that would be an academic argument. The practical matter is that graveyards in which the graves of the late Mr Makgetha and the Menu family are within the 500m blasting radius buffer zone and ordinarily within eye-sore, as they are located within 30m and 100m respectively. 7. A single grave that investigators will be shown is with the 100m prohibited buffer zone that Mr Kharivhe mentioned as a yardstick used in the mining right. Kopano requests that all stakeholders be given copies of the mining right to verify the distance mentioned by Mr Kharivhe and to establish the legal basis and rationale for the delineating 100m. Why not 500m or 1000m? 8. At the hearing Kopano complained that the phrase “any graves that occur in the same vicinity” is vague, inadequate and unenforceable from the perspective of promoting efficient administration and good governance as well as imparting sustainable development to the project from the perspective of the directly affected traditional community that is forever vulnerable to narrow and selfish corporate interests. 9. The above are some of the matters for the RM to investigate pursuant to immediate suspension of mining operations, followed by considerations of these contraventions or non-compliances as not forming grounds for withdrawal or cancellation of the mining right. Relating to Access 10. Kopano has complained to the RM, the complaint of which he procedurally unfairly dealt with under the circumstances and thereby improperly advantaging Ivanplats, that Ivanplats has from the 26 November 2014 accessed and occupied the communal properties for the purpose of commencing with mine operations, in contravention generally of the section 25(2)(d) of the MPRDA and ss 5(4)(c) and 54 of the Act in particular. 11. Section 25(2)(d) provides that “the holder of a mining right must comply with the relevant provisions of this Act, any other relevant law and the terms and conditions of the mining right”. 12. Here-above we have dealt with terms and conditions of the mining right. Proceeding henceforth we will simultaneously cover contraventions or non-compliances governed by the MPRDA and other laws. 13. Access to the properties for commercial development purposes is concurrently statutorily governed by provisions of the MPRDA as well as the IPILRA. Kopano in fact argues that the IPILRA exercises prerequisite condition or jurisdictional fact regarding access to communal and state land, which means that the statutory access provided in terms of the MPRDA must be exercised in conjunction with and alongside the statutory access governed by the IPILRA. None of these laws has constitutional powers to override or “trump” the other law. That these laws serve different functions and thus do not usurp the each other’s functions is well articulated in the Maccsand Constitutional Court judgment as a precedent. Operations must not be commenced with without both authorisations in place. 14. In the letter of notice under section 93 of the MPRDA, Kopano informed the RM that Ivanplats has on the 26 November 2014 entered and occupied the communal properties without first consulting with lawful occupier or the owner of the land in question. Kopano submitted that this non-consultation is in contravention of section 5(4)(c) of the MPRDA and section 1 of the IPILRA. We deal firstly with contravention of IPILRA. 15. Ivanplats accessed and occupied the communal properties without consultations and obtaining the consent of the lawful occupier or land owner, the consultations of which Ivanplats must procedurally conduct in accordance with prescribed interim procedures issued in terms of IPILRA and departmental policy directives. For such access consent of the Minister of DRDLR and a community majority decision is required. Substantively, the IPILRA provides that no person must be deprived of his/her informal land rights without his/her consent and if consent is gained, without compensation for the loss and enjoyment of that piece of the land he/she is deprived of. Accessing the properties outside the framework of the IPILRA is tantamount to common law trespassing offence and/or trespassing outlawed by customary law. While the MPRDA explicitly take precedence over common law, regulation of access 16. Despite being notified by Kopano in a letter dated the 10 November 2014 (See Annexure C: XX) that was replying the letter dated the 5 November 2014 (See Annexure D: xx) from Ivanplats that access to the properties would be denied and prevented, Ivanplats forcefully entered and occupied the properties since 26 November 2014. Ivanplats on the day abused the SAPS who unwittingly abetted it to contravene the IPILRA, shooting rubber bullets at the lawful occupiers who were there to protect and/or enforce their rights under IPILRA. That incident would not have happened if the RM had not conducted himself unfairly and was seen by the community to be intentionally wanting to improperly advantaging Ivanplats by the conduct. This is stated in the light that the RM also ignored the letter written on the 9 November 2014, requesting the RM to invoke section 54 of the MPRDA. (See Annexure E: xx). Because of the well-known simmering tension between Kopano and Ivanplats it was, with respect, utterly irresponsible for the RM not to respond to the letter and to act within 14 days as prescribed by section 54 of the Act. 17. Kopano in the letter dated the 1 December 2014 has notified the RM that Ivanplats is in full force now operating on the land without whatsoever having consulted with the community as the lawful occupier nor the DRDLR as the nominal owner of the properties in question, as contemplated by section 5(4)(c) of the Act. Ivanplats only formally notified Kopano in the letter dated the 5 November 2104 as stated above, which letter makes no reference to the intention or planning to conduct consultations. Past the apprehension expressed in the letter of the 9 November, the letter of the 1 December was informing the RM that the apprehension is now a reality and that Ivanplats has actually invaded the land. We had expected in terms of PAJA that the RM would act against this invasion rather than being philosophical and academically technical about the information. His action and that of Ivanplats are reminiscent of the actions criticized in the Bengwenyama Constitutional Court case, the judgment of which has set aside the prospecting right on the ground of improper consultations and improper advantage that the mining company (Genorah) in that case had at the instance of unfair conduct on the part of the DMR. 18. The above are some of the matters for the RM to investigate pursuant to immediate suspension of mining operations, followed by considerations of these contraventions or non-compliances as not forming grounds for withdrawal or cancellation of the mining right. 19. Further, kindly note that Kopano lodged a formal complaint with the DRDLR about the unlawful access and occupation of the properties, and in response the Mr Victor Madubanya was sent on Monday the 8 December to investigate and verify the allegation of invasion. Subsequent to the in loco inspection Mr Victor Madubanya wrote and sent a report to the DG of the DRLRD. Kopano suggests that in terms of co-operative governance principle that the RM of DMR obtain this report to use as a relevant factor to consider when making decision under the section 93 notice. Relating to compensation 20. Compensation for loss or damage is in the case of communal and state land governed concurrently by section 54 of the MPRDA and section 2 of the IPILRA. 21. In a letter dated the 9 November 2014 Kopano in terms of section 54(7) has notified the RM that the lawful occupier has suffered during prospecting operations and is likely to suffer further loss or damages as a result of mining operations. And as stated above, the RM has failed to respond within the prescribed 14 days. 22. However, the focus at this juncture is to highlight the question of legality of the SUCA used by Ivanplats to dispense compensation and the procedure used. Kopano is of the view that the SUCA is of questionable legality validity and that the procedure Ivanplats used is in contravention of the IPILRA as a relevant law in this regard. Contrary to the section 93 directive issued on the 15 February 2014, Ivanplats continued making compensation payments under the SUCA as opposed to making the payments under the IPILRA. This conduct constitute a flagrant non-compliance or contravention an order issued in terms of the MPRDA, and this is criminalized in terms of section 98(a)(vi). But the fine of R10 000 is hardly a disincentive for Ivanplats, who reckon that it benefits more out of the non-compliance. Ivanplats is using the SUCA as a tool to perpetuate more unlawful activities, creating instability that favours its interests in the area but wickedly blaming the on activists like members of Kopano when the tool results in lack of sustainable development of the project. Knowing very well that the SUCA not entered into in terms of IPILRA is unlawful (See Annexure F: xxx). Ivanplats is using it to mislead the ill-informed community of Magongoa that the tool entitles it to access, use and occupy the area. In other words the SUCA is used as a licence to operate in the area, much like a surface lease agreement. The distinction between compensation and surface lease agreement is conveniently blurred in order to mislead. The community is not informed that it is entitled to both compensation and surface lease agreement as separate and distinct benefits under the IPILRA. Kopano submits that it is in desiring to keep the community misinformed and misled that Ivanplats does not want to subject compensation to governance by IPILRA and to be administered by the DRDLR, an aspect which will force it to consult with the whole community as opposed to the unlawful (if not an unholy) pact made up of the Kgoshi, indunas and the undemocratically elected mining committees that Ivanplats prefers to consult exclusively with especially regarding major decisions of the project. This approach is explicitly outlawed by the prescribed interim procedures issued in terms of IPILRA (See Annexure G: Nature of Group Rights). Therefore using the SUCA to consult with the community regarding major decisions of the project is unlawful in terms of IPILRA, which Ivanplats must comply with in terms of section 25(2)(d) of the MPRDA. At this point in time therefore Ivanplats is contravening section 25(2)(d) of the MPRDA regarding a substantive consultation requirement and this has implications not only in respect to consideration of section 93 directive but the contravention justifies the community to deny and prevent Ivanplats from accessing and occupying their communal land. The principle that a land owner is entitled to deny the right holder an exercise of its statutory right to access if the right holder had not ‘solidified’ its social licence to operate is well articulated Joubert and another v Maranda the SCA, and serving as a precedent. 23. The point being made by the above discourse is that Kopano by the letter of the 9 November 2014 invoking section 54 of the MPRDA expected that the RM would find justification in our denying and preventing Ivanplats access while at the same time giving the ‘warring’ parties chance to reconcile differences under the constraints placed by section 54 of the Act. Administrative justice was denied in terms of that section and now Kopano is relying on section 93 for justice to be restored. 24. For the record, the reasons Kopano advances for deny or preventing access and occupation of the properties, based on the demonstrated reinforcing nature of the ss 5(4)(c) and 54 are: a. Mismanagement and abuse by Ivanplats of the compensation system and its payments. Mismanagement occurs when some plots owners were paid only paid for one year and never paid again for unexplained reasons, as in the case of Mrs Margret Makgabo. Mrs Margret Makgabo sustained serious head wound when on the 26 November 2014 she was shot with a rubber-bullet, her only crime being that law be enforced. Her interest at that scene was to see that government (DMR; DRDLR; SAPS) enforce the law and prevent Ivanplats from continuing to commit crime if it not made to believe that its deep pocket makes it to be above the law and accountability to the State and the people of South Africa. Abuse of the system is evidenced by the stopping of compensation payments to Mrs Jeanette Dikotle and Mr Jacob Motswaledi’s (GM: Ivanplats Local Operations) diversion of this payment to her sister-in-law, an act that contravenes customary law. The plots for which the payments are made are allegedly belong to the mother of Mrs Jeanett Dikotle, who is also the mother-in-law of the sister-in-law. Mr Jacob Motswaledi has no business and competence to adjudicate on this family dispute nor is Kgoshi L.V. Kekana because this is a corporate matter that by law is governed exclusively by IPILRA and administered by the DRDLR. This case vindicates by compensation should be regulated by government as constitutional a neutral and independent body in this regard. Ivanplats is conflicted in playing this part, and in the 15 February 2012 section 93 directives the DMR stated this much; b. In the recent round of compensation payments the plot owners of Ga-Madiba and Masehlaneng villages were inexplicably left out whereas they were also previously paid. They are in the same position as the plot owner of Magongoa village and therefore a cogent explanation must be given to them as to why they are left out arbitrarily this time around. If the compensation was administered by the DRDLR and this kind of arbitrary action occurs, the community would have a cost-effective recourse and redress in the application of PAJA. It for this reason that the DMR and DRDLR are collectively wrong and liable in not ensuring that Ivanplats is not unlawfully usurping their powers or continuing to contravene the prescribed law that governs compensation. c. Compensation is not made for loss of use the commons part of the area, which villagers use for grazing, hunting and collection of firewood and medicinal herbs. This compensation must be paid to the community as a body, distinct and apart from the compensation made to the plot owners. Consultations and decisions in this regard are exclusively governed by the IPILRA and never by the SUCA that Ivanplats used, and never provided to be administered by Kgoshi L.V. Kekana. So the R30 000 he is paid monthly to administer or manage consultations is unlawful in terms of IPILRA and the SLLDP. Relating to environmental authorisation 25. LEDET has approved the TSF Option 1 location which is in the ploughing field of the Masehlaneng community but according to the EMP that Ivanplats submitted for approval by DMR the preferred location is TSF Option 2 located at Rietfontein. 26. If the DMR’s approved EMP for mining operations has approved TSF Option 2 then there is a material and substantive discrepancy between the approval by the DMR and approval by the LEDET. Mining operations cannot be commenced with before clarity in this regard is obtained because there is not an approve location for prevent environmental degradation by tailings. A clear position in this regard is a prerequisite according to the Bengwenyama Constitutional Court judgment. 27. The other issue about location of the tailings at Rietfontein or any other area that falls within the jurisdiction of the Mokopane Traditional Council or any communal and state land is a problem for as long as Ivanplats does not recognize and acknowledge that IPILRA exclusively governs commercial development on this type of land, and that the consent of the Minister of DRLR and a community majority decision is required for access, use or occupation of Rietfontein is required. Given the hostility generated by the unlawful shooting of community members on the 26 November 2014, Ivanplats is unlikely to easily get a majority approval for occupation of Rietfontein. 28. And because Rietfontein does not fall under the mining right of Ivanplats, a special request to access and use the property is required. Ivanplats thus does not have any statutory access right to the property for mining activity purposes and as such will be accessing the land unlawfully. Because it is established that Ivanplats undermines the DRDLR, Kopano requests that the RM to assist informing Ivanplats about its legal position in this regard. 29. Attention of the RM is drawn to fact that LEDET had turned down application by Ivaplats to amend the mining right environmental authorisation in order to change approval of TSF Option 2 as opposed to approval of TSF Option 1. (See Annexure I: xxx). Reasons for turning down the amendment include, relevant to this matter, that there are graveyards and graves in the vicinity of the location for the TSF. Outstanding matters 30. Kopano submits that it was an administrative error for the DMR to have approved the mining right while there were formal complaints lodged with both the RM and the RMDEC. The complaints were consistently lodged and consistently ignored or disregarded by the two organs of state, which is why legislation must review the potential conflict carried in the RM being also the Chairperson of RMDEC. 31. At the Public Protector hearing of the 11 December two non-compliances matters that occurred during the prospecting phase were raised as outstanding matters. The matters ought to have been taken into consideration by the DG when granting the mining right, as contemplated by section 23(1)(g) of the MPRDA. Also, the DG ought to have considered as a relevant factor the letter I wrote on the 30 May 2014, alerting the DMR at the highest levels about the unfair conduct of RMDEC at the hearing of the 29 May 2014 and how this will impact on the validity of the mining right if granted before these outstanding matters are addressed and/or settled. These matters are raised in the appeal Kopano lodged on the 8 December 2014. 32. One of the outstanding issues is of course the matter of contested minerals. Herein I will simply highlight a few aspects: a. The RM is making an error in law in assuming that the minerals held in terms of the old order right are automatically transferred stock and barrel into the new order, and that there is not any obligation to mention minerals of interest; b. If the stock and barrel principle is true, Lonmin would have been entitled to all the minerals and would have had competition from Keysha. This matter clarified the legal position argued about in this present case. The MPRDA is premised on the principle of ‘use-it-or-lose’ and when the principle is applied to application for conversion, a land owner who used to have right to all minerals in his land loses those he does not mention during conversion; c. It was resolved that the RM is going to establish why the application of Central Plaza Investment for the minerals iron, vanadium and chrome was accepted even when these minerals were granted to Ivanplats in terms of the converted right; d. Further, to establish why: i. There was an arbitrary inclusion and exclusion of minerals in the prospecting and/or mining right, which creates legal uncertainty as to which minerals are encompassed by the mining right; ii. Explain in writing why Ivanplats cannot sell manganese than is usually found in association with the PGM’s of the Northern Bushveld complex; iii. Why should Kopano not act on the stock and barrel principle and insist on this basis that the Ivanplats’ very first prospecting permit/lease from the Lebowa Mineral Trust conferred the right to prospect only for “PGE or PGM ore”. This would exclude nickel, copper and gold for example; and iv. Why Ivanplats is granted minerals such as silver, chrome, iron and vanadium when it did not conduct economic evaluation of these metals during prospecting. Conclusion 33. Kopano appreciates the role played by the Public Protector at the hearing of the 11 December 2014. The role was conducted with the professionalism that can only see administrative justice done. 34. Given the apparent complexity of the case and the limited time available on the day, it is not surprising that some of the complaint raised were not dealt with. These relates particularly to the unfair conduct on the part of the RMDEC. It is critical in the scheme of things that this unfair conduct be unravelled, because it was hardly 24 hrs after the hearing of the 29 May 2014 that the mining right was granted. This gave rise to a strong suspicion that both the RMDEC sitting in Polokwane and the DG sitting in Pretoria could not have had given themselves sufficient time to apply their minds to the issues raised at the hearing. This rendered the hearing a window-dressing exercise and the very important role of the RMDEC in the scheme of things was severely compromised. 35. The complaints levelled against the RM are basically undue delay in addressing matters brought to his attention as well as unfair conduct in dealing with the matters, resulting in Ivanplats being improperly advantaged. The matter relating to alleged unlawful addition of minerals to the prospecting right was dealt with at length, and it was resolved that the RM is given more time to conduct research on the matter. It is apparent that there is a serious case to answer on the part of the DMR on the allegations by Kopano that the undue delay and the unfair conduct was all part of a cover-up to protect the suspected collusion between the DMR and Ivanplats to unlawfully add minerals to the prospecting right. The system, its principles, processes and practices were compromised. Kopano appreciates the Public Protectors on-going effort to get to the bottom of it. 36. A current and on-going unfair conduct was also raised. This relates the matters after the mining right was granted, conditioned attached to it and its eventual execution. Further, the unlawful conduct of Ivanplats was reported to the RM, relating to commencing of operations. 37. The complaint paints a picture of a developer that conducts the development like he is in a lawless ‘Wild West’ country and where the smoke of a burning dollar-wrapped cigar is blurring the rules. 38. Despite being warned about outstanding issues, Ivanplats entered our communal and sacred land with guns blazing and gas cylinders exploding. Women were shot at, made to inhale suffocating gas and thrown into the back of a police van. The women were there to demand justice but were given more injustices by the police that were tricked into assisting the perpetrator to continue committing crime. 39. This cannot be happening with impunity in a constitutional democracy. The Public Protector has established a solid reputation as a meaningful protector of our constitutional democracy, and Kopano trusts that justice will be pursued without favour or fear by the Public Protector. Time is of essence in this regard, and rightfully timeframes and programme of action were set during the hearing. 40. At the end, it is in the interest of all that the rule of law be instilled in the minds of those charged with the responsibility to contribute to the development of our country, and to ensure that this promising commercial development is developed in a sustainable manner by all key stakeholders.
Posted on: Thu, 22 Jan 2015 11:37:15 +0000
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