THE community of Ga-Mphahlele in Limpopo has scored a victory against the local chief, her son and a mining company all accused of illegal mining of chrome and other minerals in the area.
The Polokwane High Court has ordered Thabo Malekutu Phatudi- Mphahlele, his mother Kgosikgadi Sophia Ngwanamohube Phatudi- Mphahlele and Dithabeng Mining to stop mining activities in violation of the prospecting rights granted to the Mphahlele Community Development Trust. The respondents also included Bakgakga Ba Ga Mphahlele Traditional Authority, Department of Mineral Resources (DMR), Mphahlele Community Development Trust and MEC for Safety and Security. However, no specific order was sought against them except in the case they oppose the application.
The matter dates to 2010 when the Traditional Authority approached a law firm to assist with the application for the prospecting rights at one of its farm known as Locatie Van M’patlele 457KS for chrome, vanadium and iron ore. After meeting all the requirements, DMR issued the prospecting mining rights and went on to grant the Mphahlele Community Trust as being the Holder of Prospecting Right.
According to the affidavit deposed by Mphahlele Royal Council chairperson, Nkopodi Mphahlele, the local chief Kgosikgadi Phatudi- Mphahlele unlawfully and illegally appointed her son, Thabo Malekutu, to act in her capacity without the resolution of the Traditional Authority and Royal Council.
She also appointed him as the representative of the Community Development Trust in “contravention of the Trust Laws of the RSA”. Thabo Malekutu then went on to misrepresent himself to the Notary Public as the representative of the Community Development Trust in 2015. “The first respondent (Thabo Malekutu) is also not a trustee and cannot be proper to represent the Mphahlele Community Trust and same is also not possible without the knowledge and resolution of the Mphahlele Royal Council.
“On the 23 March 2017, the 2nd respondent (Kgosikgadi Phatudi- Mphahlele) appointed the 1st respondent (Thabo Malekutu) as the chairperson of the 3rd respondent (Traditional Authority) without the knowledge and resolution of the 1st, 2nd and 3rd applicant (Nkopodi Mphahlele, Royal Council and Mphahlele Community respectively), let alone the 3rd respondent (Traditional Authority),” Nkopodi Mphahlele said in his affidavit.
It was against this background that Nkopodi Mphahlele believed that the action set the stage for Thabo Malekutu and Kgosikgadi Phatudi-Mphahlele to enter into a joint venture “with a company which is not registered in terms of the Company Laws of the Republic of South Africa”. The company he referred to is Dithabeng Mining.
He believed the joint venture agreement between the Traditional Authority and Dithabeng Mining was unlawful and illegal as the prospecting right was issued to the Community Development Trust.
He went on to detail the large scale of mining in contravention of the prospecting rights and how the community discovered such an activity.
On September 17 this year, members of the Mashemo Owners Association gathered for a meeting to prepare for the ploughing: “One member of the Mashemo Owners Association raised an issue that the mining activities were taking place at a full scale and it will not be possible to get access to the land, let alone to plough for the season,” he said.
A ward councillor was contacted and rushed to the area to investigate. However, he was met by armed balaclava-clad security guards.
“I’m told that where he was standing, he could see a sizeable number of pay-loader trucks, tipper trucks, dump trucks and excavators. These equipments used on site were a confirmation that indeed illegal mining is in operation. This further contravenes the regulations as contained in the prospective work programme,” he said in the affidavit.
It was also pointed out that Kgosikgadi Phatudi-Mphahlele has been a regent for 41 years and her certificate has expired, and therefore a decision “in the absent of a valid certificate is void ab initio”.
The High Court has issued a draft order which stipulates, amongst others, that:
- Thabo Malekutu, Kgosikgadi Phatudi-Mphahlele and Dithabeng Mining stop conducting any illegal and unlawful mining activities without a valid mining permit in contravention of the prospecting rights granted to the Community Development Trust
- They must stop, including any person or equipment including excavation trucks, from removing mineral resources from the farm Locatie Van M’patlele
- They must stop conducting any mining activities without prior consultation with the community
The Court has also given them a period to show why certain aspects cannot be reviewed and set aside. This include:
- The decision by Kgosikgadi Phatudi-Mphahlele to unlawfully and/or illegally appointing her son Thabo Malekutu to represent the Community Development Trust and Bakgakga Ba Ga Mphahlele
- The decision by Kgosikgadi Phatudi-Mphahlele to appoint Thabo Malekutu as the senior traditional leader of the Bakgakga Ba Ga Mphahlele
- The decision by Thabo Malekutu to apply for the amendment of the prospecting work programme to include bulk sampling
Kgosikgadi Phatudi-Mphahlele, Thabo Malekutu and Dithabeng Mining could not be reached for their comment on the court order and whether they will challenge it.
Dithabeng Mining founding document
The founding documents of Dithabeng Mining posted on its website read in part: “At the beginning of 2016, the executives of Dithabeng Mining approached the Ga-Mphahlele Community Development Trust in Mphahlele, just 45 km southeast of Polokwane, Limpopo. They brought their vision to the community table and thus began the lengthy negotiations that would later merge into a united vision … and finally become Dithabeng Mining-Mphahlele.
“Over a year later, on 25 February 2017, Dithabeng Mining, together with approximately 1,000 Ga-Mphahlele residents, the Queen Mother Kgoshigadi Sophie Ngwanamohube Phatudi-Mphahlele, and the Bakgaga Ba Mphahlele Traditional Authority (Community Development) Trustees, ‘The Headmen’, celebrated the beginning of a new era with a signing ceremony and a landmark agreement that clearly placed the community as the majority shareholder of the mine in the forefront of Community Development. Transformation has already begun and the people of Ga-Mphahlele, who retain their preferential prospecting rights, will see the fruits of their own land in their lifetime.”
However, the company only gives its postal address in Sandton, Johannesburg, and there are no contact telephone numbers.