- Community members, commercial farmers and environmentalists are raising concerns that Jindal’s proposed $2 billion iron ore mine project, slated to be one of the largest in the Southern Hemisphere, could be allowed to exploit the mineral without community consent — but only with that of their leader.
- Due to the structure of South African law, traditional leaders tend to see themselves as the sole decision-makers in their communities and approve of extractive projects for their stated economic benefits in the region.
- Many communities sit on valuable resources like platinum and titanium, and there is a significant possibility that with the current structure of the law, people will be removed from their lands to make way for extractive industries, say land policy researchers.
- Traditional leaders maintain that it is important for the law to recognize traditional authorities after decades and centuries of fighting for formal recognition after colonization.
MAKHASANENI, South Africa — In a village in the rolling hills of grassland, woodlands and scattered homesteads in South Africa’s picturesque KwaZulu-Natal province, a broil between traditional leaders and community members is playing out.
For hundreds of years, chiefs, who have been the unequivocal leaders of Zulu communities in the region, have believed their word is law. However, a proposed mining project is dividing the area’s traditional chief and many community members, showcasing a wider trend playing out across the country.
It’s also raising a crucial question: Is it “community consent” when it’s the traditional leader who holds all the power to rubber stamp a project?
“I was born here. I grew up in this place,” said Duduzile Dludla, resident of the village of Makhasaneni, pointing to the hills and rivers in the valley in front of her home. Residents against the mine say many such homes and ancestral graves would be moved to make way for the mine. “This place is like a [comforting] blanket to me.”
But for the traditional chief S.T. Zulu of eNtembeni and Indian mining giant Jindal, the mine holds rich promise. Makhasaneni village sits in Block A, one of the two blocks part of Jindal’s proposed $2 billion open-pit magnetite iron ore mine project, slated to be one of the largest in the Southern Hemisphere. The company says the mine will reduce poverty and improve living conditions by employing at least 800 permanent employees and 1,600 temporary employees during the mine’s 25-year lifespan. The chief gave swift permission for Jindal to begin prospecting.
Across South Africa, there is a growing trend that customary land rights, where community members have a say in the use of their ancestral land, are only respected in the absence of lucrative business opportunities. Traditional chiefs tend to see themselves as the sole decision-maker and approve extractive projects for their stated economic benefits to the region without the approval of their communities, according to a report by Mbongiseni Buthelezi and Sithandiwe Yeni, researchers at public affairs and development institutes. Even when presented with a choice between personal profit or rural livelihoods and the environment, traditional leaders are incentivized by business groups to opt for the former.
A high-profile example has been in the Xolobeni region, where rural activists have opposed attempts by an Australian company to develop a titanium mine. Their traditional leader claimed to be their sole legal representative while also serving as a director of the local partner to the Australian mining company.
Many communities in the African nation sit on valuable resources like coal, platinum and titanium, used in jewelry, vehicles, aircraft and missiles. With a lack of other opportunities and rural unemployment in South Africa currently sitting at roughly 43.3%, policy researchers say there is a significant risk that under the current structure of the law, in which leaders hold the power to sign off on extractive projects, people will be removed from their lands.
A leader’s word is law?
Dludla, a single parent to four children and three grandchildren, says she feels a connection to the land, which gives her almost everything she needs.
The land provides her and others in her community fresh water, firewood, wild medicinal plants, fields for grazing livestock and planting vegetables. The land also holds the sacred ancestral graves that play a vital spiritual role for members of the village.
Then, Jindal arrived in Makhasaneni in 2011 and began prospecting in people’s fields without consulting the community, residents tell Mongabay. The company sought to establish whether the area had sufficiently high levels of iron ore to justify mining. After the prospecting began, a number of cattle and goats died from poisoned water, the community activist Rev. Mbhekiseni Mavuso told Mongabay. Family graves were reportedly damaged, crop fields were destroyed and water streams became poisonous and ultimately ran dry when drilling began at water sources.
Members of the community swiftly confronted their traditional chief, and he admitted to giving permission to Jindal, allowing the company to conduct prospecting activities.
The chief apologized for his actions — including not consulting with the community — during a meeting with the members of the village. However, he insisted that Jindal be given a chance to continue with the prospecting activities for the possible economic benefits that would come.
Community members, commercial farmers and environmentalists remained unimpressed and protested against the mine, raising concerns that its possible social and environmental costs would outweigh the proposed benefits. This included that the project would employ locals only for the menial jobs they were qualified for, make them lose out on their prosperous land-based livelihoods and cause a net loss of employment. Talk of economic benefits also failed to capture the enormous spiritual and cultural value of the land for these communities.
The site contains some critical biodiversity areas including an endangered grassland ecosystem and several red-listed, rare or endemic species of flora that form part of the Maputaland-Pondoland floristic region, an important center of plant endemism. Additionally, there are several freshwater ecosystem priority areas, with Blocks A and B containing 930 rivers or streams and more than 80 wetlands.
Jindal also proposes a tailings dam, which would carry waste from the mine, including heavy metals, that would be based next to the Mhlathuze River. Locals and farmers are particularly fearful of any spill from the dam after another tailings dam, belonging to a Zululand Anthracite Colliery coal mine, burst into a major river, the Black Umfolozi, about 100 kilometers (about 62 miles) from Makhasaneni.
“I struggled to raise these children and make a decent home,” said Dludla. “When the mine comes, it will destroy all these buildings. And because I have a certain sickness, it will worsen because of the air pollution [from mining].”
Traditional leaders agreeing to projects behind their communities’ backs is part of a concept that individual rural people don’t have any rights and they don’t even exist unless they’re spoken for by a chief or a king, said Wilmien Wicomb, a lawyer from South African NGO the Legal Resources Centre (LRC).
The Traditional and Khoi-San Leadership Act (TKLA), signed into law four years ago, is in part responsible for this dispute between traditional chiefs and community members. For the first time, in the country with a long and complex history of colonization and apartheid, the act recognized the governance structures and customary practices of traditional communities, particularly of the Khoi and San peoples, into the Constitution.
And this included the “traditional” powers that the colonial white government granted to traditional chiefs over their communities in the small carvings of land known as Bantustans, into which the Black majority was squeezed. These lands now frequently turn out to be on top of valuable mineral deposits.
This means the act also gave leaders the power to sign off on deals without consent from communities, according to the Legal Resources Centre, which took the TKLA to court on behalf of rural communities, activists and land rights organizations. According to the act, companies don’t have to get consent from the majority of the community to green-light their projects.
“If you’re a community member and you have a really problematic, corrupt, abusive chief, there’s absolutely nothing you can do about it,” said Wicomb. “There’s not a single mechanism in the legislation for a community member or an entire community to hold their leaders to account.”
According to the report by Buthelezi and Yeni, brothers of Makhasaneni’s leader were employed at some point by Jindal Africa in its offices based in Melmoth, a town not far from Makhasaneni. Some community members say the brothers of the chief have intimidated them against speaking out about the mine.
“There were rumors that some people had been given money [by Jindal] to allow the mine to do prospecting,” said Dludla.
Mongabay approached the adviser of Chief S.T. Zulu of eNtembeni, the traditional leader who is responsible for the areas under the proposed mine, for an interview. The adviser said the chief couldn’t talk about mining but that he, “as a leader, always wishes good things for the community, development and prosperity.”
When approached for a comment, a spokesperson for Jindal said that in addition to regular meetings with traditional leaders, they had extensive community consultation meetings during the prospecting phase.
“It employed roughly 160 community members from communities impacted by our prospecting activities, and in consultation with communities, we also implemented a grievance procedure to manage and resolve any concerns raised by community members.”
However, consultation is not consent, say rural communities, activists and land rights organizations involved in the court case against the TKLA.
While the Constitutional Court ruled the TKLA unconstitutional in May as Parliament failed to facilitate sufficient public participation for citizens to comment on the act, this does not mean the law in its current form is at an end. It will remain in effect until 2025, by which time Parliament has to either reenact the law with sufficient participation or pass a new one.
Traditions, apartheid and power
Still, traditional and Khoi-San leaders feel cheated.
Khoi and San Peoples have suffered a long history of dispossession and exclusion in South Africa, from the arrival of migrating black Bantu agriculturalists around 2,000 years ago to European colonialists in the 1600s and later by the apartheid government.
“Khoi and San people over decades and centuries were never formally legally represented in any South African governmental structure,” said Cecil Le Fleur, chairperson of the Khoi-San Council. Other Black communities already have some legislation to recognize their authorities, he said, whereas traditional and Khoi-San peoples have been fighting for formal recognition since the dawn of South Africa’s democracy 30 years ago.
Apart from the Khoi-San Council, there are various individuals who claim to be representatives of Khoi and San royalty and the TKLA was supposed to officially establish these roles.
The court’s decision could see further delays of years to their recognition, said Le Fleur.
Wilcomb, however, sees the court’s decision as a victory for South Africa’s 18 million rural people who live under traditional authorities. She said the issue of consent is especially pertinent where community lands sit on valuable resources.
She gave the example of Xolobeni, where the community’s traditional leader was put on the board of a proposed titanium mine. Wilcomb explained that the state and mining company just took the position that a traditional leader is the sole legal representative of the community and thus only needed to persuade him to gain consent to mine.
South Africa does not have specific legislation that governs free, prior and informed consent (FPIC), an international principle to ensure the participation of and agreement from Indigenous and local communities before undertaking projects that may affect their land, resources or rights. But in 2018, a high court in the Xolobeni case ruled in favor of the community and confirmed that, based on international FPIC principles, customary law also requires informed consent. Wilcomb said this case should serve as the rule book for the country.
Before colonization, traditional communities often elected their leaders, who were trusted and made decisions by consensus, contrary to the centralization of power that appointed leaders hold today, Yeni, who is also a Ph.D. candidate and fellow at the Institute for Poverty Land and Agrarian Studies (PLAAS), University of Western Cape, told Mongabay.
With colonialism, apartheid and the arrival of capital, customary laws became distorted, said Yeni and it’s not always clear what pre-colonial decision-making or power structures in a given community were.
Today, the chief presiding over Makhasaneni community, for example, is part of the Zulu royal family, which reigns over Zulu leaders and communities and oversees land use through a trust. And the new Zulu king who ascended the throne late last year is pro-mining. Traditional leaders have had greater incentive to be co-opted by outside interests, she said. This includes mining companies as well as local business elites who can earn lucrative contracts providing services to mines such as transportation, construction, security and even the subcontracting of mine workers.
“There’s a pattern wherever there are resources that that business can make money from,” said Yeni. “Now it’s a power game. These people are imposed; they are not elected. If you challenge them, you are threatened [by anonymous people].”
The safety of anti-mining activists and community members is precarious in the region. Near Mtubatuba, a community in KwaZulu-Natal where the Tendele coal mining project is in operation, activist Fikile Ntshangase was murdered in 2020 by unknown assailants. While Xolobeni became a landmark case for community consent, it also became a flash point for the high price that can be paid by communities resisting extractive industries. In 2016, well-known anti-mining activist Sikhosiphi “Bazooka” Rhadebe was murdered in Xolobeni, and no arrests have since followed.
In Makhasaneni, Mongabay saw a message in a WhatsApp group convened by Jindal for mine project stakeholders and impacted communities where someone openly said it was okay to kill a prominent anti-mining activist in the community. Other activists told Mongabay of death threats they had received in the form phone calls and messages, as well as statements in public meetings calling for people opposing the mine “to be dealt with.”
A 2023 report by the Business & Human Rights Resource Centre, recorded Jindal as among the top five companies internationally associated with attacks on defenders protesting harmful business practices.
When reached for comment, Jindal said it took allegations of intimidation very seriously and had implored interested parties not to use words that could be inflammatory and seen as encouraging violence.
So far, Jindal said, 350 homesteads, along with each family’s graves, would need to be resettled in the villages in Block B during the first phase of the project. This would be done according to best practices and in consultation with — but not the consent of — communities.
When activist Zimbisule Zulu from Matshansundu village in Block B visited a community that made way for a Jindal coal mine in South Africa’s Mpumalanga province, what she saw made her even more skeptical of the iron ore project.
“I saw poverty, dust, houses cracking. People were sick,” said Zulu. “The community said it was a bad experience and that you shouldn’t do mining. They were promised a lot but didn’t get it. The job opportunities were short-term and now they have nothing.”
The proposed iron ore mine is currently in its Environmental Impact Assessment phase and the entire life of the mine could increase to more than a century if the company decides to mine both blocks, said SLR Consulting South Africa Pty. Ltd., an independent firm of environmental assessment practitioners.
Banner image: Activist Duduzile Dludla of Makhasaneni, standing in front of her home and an umbombe or forest strangler-fig (Ficus natalensis) whose bark can be taken during pregnancy and used an ingredient in imbembe to ensure an easy birth. Image by Dimitri Selibas for Mongabay.
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