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See you in court, Mr Minister - 4 September 2008
Sonjica vs Spoor - it's a classic showdown that has rural villagers and traditional leaders on the Wild Coast tackling the South African government for not protecting their land against mining practices which they consider exploitative and rapacious.
This week, the Amadiba Crisis Committee, a coalition of residents in the Amadiba Tribal Authority, asked prominent human rights attorney Richard Spoor, to bring a High Court application setting aside the awarding of a mining licence in the area by Minerals and Energy Minister Buyelwa Sonjica.
Sonjica recently approved plans by an Australian mining company, Mineral Resource Commodities, to start stripping coastal dunes along South Africa's pristine Wild Coast of titanium-enriched minerals.
Outlining the planned legal action, Spoor said his clients were concerned that the Xolobeni Mineral Sands Project would not benefit local communities, but instead decimate traditional, cultural life and sustainable rural livelihoods in the area, leaving people with even less than they have now.
"Yes, it's not much, but at least they have their land, on which they have generated a livelihood for hundred of years. Without that they are nothing," said Spoor.
"They are not desperate for mining in the area, as the minister would have us believe," said Spoor. "They are not asking for their lives to be turned upside down, their homes smashed, their environment degraded. But the mining legislation as it stands gives them no protection against this. It's expropriation without agreement, without consultation, without compensation."
Spoor said the granting of this mining licence was "being promoted as an expropriation and exploitation of natural mineral resources in the national interest and for the benefit of local communities".
"But in reality it's profit-driven exploitation for the benefit of a private corporation and their shareholders - in this case foreigners," said Spoor.
Spoor said the very people whose land is to be expropriated to make way for the mining had not been consulted properly, advised of the impact mining will have on their environment, or informed of their rights to oppose the mining plans.
Spoor said this rendered Sonjica's approval of the mining as fundamentally flawed in almost every respect - legally, procedurally and constitutionally. He said his clients now wanted the High Court to ensure greater protection of their traditional land rights and better laws governing approval of mining licences in South Africa.
Sonjica, on the other hand, has already publicly accused Spoor of hindering progress and development of the area.
Addressing a recent government jamboree on the Wild Coast to announce that the Xolobeni mining project was going ahead, Sonjica said the heavy minerals mining would address extreme poverty in the area, bring much-needed jobs, socio-economic development and associated infrastructure to the area - such as tarred roads, electricity, tapped water, sanitation and new schools.
She said mining could also co-exist with eco-tourism - like twins.
She then told the crowd - about 7 000 people attracted by song and dance entertainment, free food and registering of social welfare grants and identity books - that Spoor was acting in cahoots with "rich whites" interested only in preserving the pristine natural beauty of the Wild Coast for their exclusive use.
"There is a man called Richard Spoor who has divided the community," said Sonjica. "He is a white person. Today Spoor says he is fighting for people's rights, but where was he when Joe Slovo (former South African Communist Party leader) was fighting for people's rights and was imprisoned for that?
"How much does he get for dividing our community? What is his agenda for not wanting progress?" Sonjica asked.
Given Spoor's human rights background and experiences under apartheid, Sonjica's decision to smear his name in the eyes of thousands of rural voters, not only captured national headlines, but also attracted the attention of the South African Human Rights Commission and the legal fraternity.
Spoor began his legal career at Gold Fields, working off a bursary, but was fired after apartheid security police advised his employers that the young lawyer-to-be was secretly meeting with mine workers.
After completing his articles at Priscilla Jana and Associates, Spoor developed an impressive track record as a labour and human rights lawyer, and is today widely recognised for having taken on significant cases that contributed to the demise of apartheid.
While various commentators are incensed at Sonjica "playing the man and not the ball", as environmental lawyer Jeremy Ridl put it, Spoor this week dismissed Sonjica's attack on him as silly.
He said responding to it would only create a sideshow, detracting from important legal issues surrounding the awarding of the Xolobeni mining licence.
First, said Spoor, Sonjica's decision ignored grave objections of another arm of government, the Department of Environmental Affairs and Tourism, which has recommended against the mining, warning of severe environmental degradation and unforeseen consequences of excavating vast volumes of heavy mineral silt deposited over aeons of time.
It has also by-passed the National Environmental Management Act (Nema), which gives the minister of environmental affairs the final say over any development that might impact adversely on the environment. Sonjica has countered that these concerns are to be addressed in an environmental management plan approved by her department. But Spoor said without Nema approval, any mining licence was invalid, and thus illegal.
Spoor said although the licence had been awarded in terms of the Minerals and Petroleum Resources Development Act, this mining legislation did not taken into account people's land rights, which were protected by the constitution.
"Awarding mining rights without the agreement of the people who stand to lose their customary rights to their land is clearly unconstitutional," said Spoor.
He said government mechanisms to ensure that mining companies invested in the socio-economic upliftment of communities, like labour and social plans, were hopelessly inadequate, resulting only in empty promises.
"These corporations dress themselves up as caring entities in applying for a licence, pretend they have empathy, make a big noise about what they intend to do for communities, but deliver little," said Spoor.
"And at the end of the day, a corporation does not function like a person. It's incapable of compassion. They have no philanthropic interests or function beyond maximising profits. When they pretend to be concerned, they are fundamentally dishonest," said Spoor.
Spoor is also critical of the set-up of a local black economic empowerment company, Xolco, as the proposed vehicle through which the local community can buy 26% of the shares in the mining operations - at "a grossly inflated price".
Xolco comprises a plethora of community trusts representing the elderly, women, the youth, the disabled, the business sector and others.
Spoor said to use this entity as a vehicle for people in the rural communities to enjoy a share in the mining was "complete cockeyed nonsense, cobbled together to bring in as many people as possible under the guise that they have a stake".
"It's a superficial structure, completely unworkable - probably one of the worst examples I've seen of black economic empowerment. It will deliver nothing. It's really a farcical effort to convince the world they are doing something wonderful for this community," said Spoor.
He said divisions arising over the Xolobeni project followed a pattern of coercive behaviour peculiar to South Africa's mining industry.
"The mining companies work quite deliberately to co-opt local leadership, identify leaders, bring them on to their side and start paying them for their work to gain community support.
"At the same time, they punish those opposed to mining, challenge their integrity, publicly undermine them, or simply refuse to engage with them. So you have this double strategy at play - co-opt and subvert," said Spoor.
"And it's easy to win support of a small clique of self-interested people, local politicians, businessmen and community leaders, who get promised benefits of mining, who see an opportunity to enrich themselves or to score votes."
Spoor said the case now being taken to the High Court, and possibly the Constitutional Court, would essentially be asking whose rights are more important: a corporation's right to exploit mineral resources for the benefit of an elite few, or rights of thousands of people powerless in the face of the buying power of the mining industry and questionable government decisions, such as the Xolobeni mining deal.
"There's a fundamental clash of rights here that seriously needs to be addressed," said Spoor.
[ By Fred Kockott on IOL ]