A specter haunts the Republic of South Africa, the specter of rural people’s power joined with the spirit of Frantz Fanon. Thursday, the South African Constitutional Court issued a ruling in the case of Grace Masele Mpane Maledu and 37 others vs. Itereleng Bakgatla Mineral Resources (Pty) Limited (IBMR) and Pilanesberg Platinum Mines (Pty) Limited (PPM). The decision, written by Justice AJ Petse, opens: “The statement by Frantz Fanon in his book titled `The Wretched of the Earth’ is, in the context of this case, apt. It neatly sums up what lies at the core of this application. He said that `[f]or a colonised people the most essential value, because the most concrete, is first and foremost the land: the land which will bring them bread and, above all, dignity’. Thus, strip someone of their source of livelihood, and you strip them of their dignity too.” The Justice had me at “Hello”.
The story officially begins in 1916, when 13 families of the Lesetlheng Community, in what is today North-West, decided to purchase some land. They saved money, and, in 1919, the Community bought that land. In 1919, Black Africans couldn’t officially own land, and so the land was registered to the Native Commissioner, who ostensibly held the property in trust for the Chief of the Bakgatla-Ba-Kgafela, the traditional authority under whom the Lesetlheng Community fell. According to Grace Masele Mpane Maledu and the 37 other descendants of the original purchasing families, it was understood that only the 13 families could farm on the land. The land was divided into 13 sections, which the families controlled individually. Over the years, the families built various structures, for themselves, workers, livestock and equipment. And that’s how things stayed until 2004.
In 2004, Itereleng Bakgatla Mineral Resources, IBMR, gained the right to prospect the Lesetlheng Community’s land. In 2008, IBMR won a mining right over that land. According to Justice Petse, “On 19 May 2008, IBMR was awarded a mining right over the farm by the Department. On 20 June 2008, an environmental management programme required in terms of section 39 of the MPRDA was approved. On 28 June 2008, IBMR concluded a surface lease agreement with the Bakgatla-Ba-Kgafela Tribal Authority and the Minister in respect of the farm. In 2014, preparations for full-scale mining operations on the farm commenced … In 2015, and in order to relieve themselves of the intolerable situation that had arisen as a consequence of the respondents’ mining operations, the applicants obtained a spoliation order against the respondents.”
The Lesetlheng Community won that case. IBMR immediately applied for, and won, an eviction order. That order was approved by various courts, and so, until Thursday’s Constitutional Court decision, it looked like Grace Masele Mpane Maledu and the 37 others had won a battle and lost the war … and everything they owned and cherished. That the lower courts based their decisions on the Lesetlheng Community not being actual owners of the land was devastating, as was the collusion of the Bakgatla-Ba-Kgafela Traditional Authority with the mining companies.
With a unanimous decision, the Constitutional Court turned that around. They based much of their decision on Section 25(6) of the Constitution: “A person or community whose tenure of land is legally insecure as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to tenure which is legally secure or to comparable redress.” In this case, that meant that Grace Masele Mpane Maledu and her 37 comrades were indeed owners of the land, that the mining corporations had not sufficiently consulted with them, and that, if mining were to occur, the process would have to start all over.
More broadly, the decision stated that “informal land holders” have rights equal to those of formal landholders. The court decided that history matters. Courts and judges matter as well. Language matters, too. By invoking Fanon’s analysis, Justice Petse identified the history of land ownership in South Africa as colonial and stated that the nation has not yet entered into the dawn of the post-colonial, rainbows notwithstanding. Justice Petse made it clear that that dawn is coming.
In 1919, thirteen families bought a farm named Wilgespruit, locally known as Modimo Mmalo. Next year, 2019, will mark the centennial of that purchase. Grace Masele Mpane Maledu and 37 other descendants of the thirteen families will celebrate in their own fashion. We should all celebrate, and honor, Grace Masele Mpane Maledu for their perseverance in the pursuit of “bread and, above all, dignity”.
(Photo Credit: New Frame)
