OPINIONISTA: Xolobeni: Justice grinds slowly and fails to protect victims of attacks and intimidation by pro-mining forces

OPINIONISTA: Xolobeni: Justice grinds slowly and fails to protect victims of attacks and intimidation by pro-mining forces

Opinion Healy XolobeniTW

In yet another twist in the battle over the titanium mining of Xolobeni on the Eastern Cape’s Wild Coast, five men who faced charges including attempted murder were acquitted at the end of August. Their victims were a group of male residents of Mdatya village in the coastal Amadiba area, a staunch anti-mining community.

Hali Healy

Dr Hali Healy is Senior Lecturer in the Department of Anthropology and Development Studies at the University of Johannesburg. She attended part of the trial proceedings as an observer.

On Tuesday, 31 August 2021 at the Mbizana District Court in the Eastern Cape, the trial of five accused in a case known as the 2015 Christmas Shootings, finally drew to a close.

The five men had been charged with attempted murder, assault with intent to do grievous bodily harm, pointing and shooting of firearms and theft. The victims, a group of male residents of Mdatya village in the coastal Amadiba area, were attacked on a December evening as they walked home from a ceremony.

The attack was the culmination of a week-long campaign of intimidation, aimed at residents who since April 2015 had coordinated a blockade, preventing access by consultants trying to carry out an environmental impact assessment. The assessment was (and still is) necessary for the proposed Xolobeni Mineral Sands Project to go ahead.

This project, led by Australia’s Mineral Commodities (MRC) and its South African subsidiary Transworld Energy and Minerals Resources (TEM), and heavily backed by the Department of Mineral Resources and Energy, the Department of Trade and Industry and the Department of Transport, has been resisted by residents since 2007, when the Amadiba Crisis Committee was formed.

All five were found not guilty in a ruling handed down by the Mbizana Regional Court — one that was as shocking as it was disappointing.

The decision followed a remarkable trial, the details of which, without doubt, indicate a crisis of integrity within South Africa’s legal system.

The trial, for example, had dragged on since 2015, despite clear regulations stipulating that cases in regional courts must be resolved within six months from the entering of an initial plea. The lag was attributed to the fact that whenever the case came to court, proceedings had to be postponed — more than 10 times — invariably due to stalling tactics deployed by the defence.  

In April 2021, this pattern continued, as one of the five accused — who happened to be an employee of the MRC-owned Tormin mine — failed to appear in court. At first the defence lawyer claimed this client had been in a car accident. Moments after a hushed phone call in the courtyard, however, the story changed to one of illness, and a hastily obtained doctor’s note was presented to the court. This time the trial was postponed only for a day. This delay meant the proceedings would be rolled over to August, buying time for the defence to build its arguably weak case.

The majority of defence witnesses (nine out of 14) were close family members (brothers, sisters and mothers) who predictably testified that the accused were with them at their homes at the time of the attacks.

It was not surprising then that the defence, lacking solid evidence of the innocence of the accused, embarked on a character assassination of the victims. The thrust of the argument was that the victims had been the aggressors and that the accused had merely acted in self-defence. As part of their case, the defence argued that one of the victims, permanently disabled as a result of the attack, had been seen travelling short distances on foot without the aid of his walking stick.

Also notable throughout the trial was the obvious uninterest on the part of the prosecution in pursuing the interests of the complainants. It was telling, for example, that since the beginning of the trial no one on the prosecution team had once initiated contact with any community members or their legal representatives to hear their accounts of events in December 2015.

It was also curious how the prosecution refrained from challenging any of the unfounded assertions made by the defence. The State remained silent, for example, when the defence argued in April that because one of the victims could not identify the specific model of the gun that had been pointed at him, and because no gun had been found in the possession of that accused (a full day later when he was finally tracked down by police), that the victim must have been lying.

Nor did the prosecution query the contradictory testimonies of two of the accused in July, when one claimed that the group of anti-mining attackers had numbered more than 200, while another asserted (before changing his story upon being prompted by his attorney) that there had been fewer than 20.

Most perplexing, and arguably most damaging, was the State’s decision not to make a closing argument as the trial drew to a close. When offered the chance to do so, the prosecutor declined, instead requesting that the court base its decision on the evidence adduced by witnesses. 

This is indeed what the court did, but not until it lambasted the prosecutor for failing to make a closing argument on behalf of his clients. The magistrate observed: “The State does not believe in its case.” That the prosecution would not give closing arguments strongly suggested “that the State did not want to make itself a fool in front of the court”.

Before delivering the not-guilty verdict, the magistrate referred specifically to the account of an 11th-hour witness called by the defence. Presented as “neutral” with regard to mining, this witness had reported having seen “two groups fighting with sticks”, but “did not see anyone injured”. For the magistrate, this was a clear refutation of plaintiffs’ claims that they had been victims of an attack.

In reality, however, this witness is known by residents to be the chairperson of a pro-mining “development committee” in Mdatya, established by the five accused. The witness did not only lie about his neutrality, he also failed to mention that he had driven two of the victims to the Ntabeni Clinic in KwaZulu-Natal to be treated for their injuries.

If the State had bothered to investigate, the prosecution could have led with this evidence.

The State’s failure to submit closing arguments predictably also led to discrepancies between the evidence and the court’s findings.

For example, in delivering its findings, the court declared it had found a local headwoman (traditional leader) to be a “liar”, despite the fact that she was not part of the case and had not even appeared in court. The court also repeated a baseless accusation made by the defence that one of the plaintiffs had lied about the extent of his injuries to gain the sympathies of the court, and had been in permanent employment. This contradicted evidence presented in the form of medical records, and an admission by the plaintiff to being employed under the disability quota of the Expanded Public Works Programme, a temporary, state-sponsored employment scheme. 

Earlier in the year, moreover, the court challenged the accused over inconsistencies in their narratives, asking whether there were “over 200” who walked around threatening mining supporters during the day, or “10”. The magistrate even remarked (somewhat tongue-in-cheek) that the five defendants must have been “very brave indeed” to have withstood such an attack. In the judgment, however, the only accusations of inconsistency and dishonesty were levelled at the plaintiffs.

Then, before announcing his final decision, the magistrate delivered a final blow, stating that the complainants had used the court “incorrectly” to further their anti-mining agenda. As such, he concluded, the case should never have been prosecuted.

The significance of this statement should not be underestimated, not least because it directly and incontrovertibly contradicted the expert legal opinion articulated by Vuyani Genu, chief prosecutor of the Mthatha cluster of the Eastern Cape. When approached by the defence to throw out the case in 2019, Genu replied: “Having considered your representations in this matter and having read the docket herein, I am of the view that the State has a very strong case against the accused and I therefore direct that the case must proceed.”

Nor, of course, should the importance of the ruling itself be dismissed.

In a context where the murder of Amadiba Crisis Committee chairperson Bazooka Radebe remains unsolved after five years, the State’s consistent failure to vigorously prosecute pro-mining assailants speaks volumes.

It signals that supporters of contested mining projects can carry out campaigns of intimidation, using violence with impunity, under the nose of, and in some cases with the assistance of the state. This is a phenomenon that has been documented extensively by human rights and environmental justice organisations across South Africa.

It also reflects a shift in strategy on the part of the state, away from open confrontation with communities opposed to mining that are likely to attract international attention and scare off investors, towards a more hands-off approach. In realising its land grab to secure the titanium sands of Xolobeni, the South African government is relying increasingly on political developments on the ground to generate public support for the mining of Xolobeni to proceed.

For these efforts to succeed, the credibility not just of individuals, but of communities and the wider movements they belong to, and by extension, the viability of the sustainable and equitable economic alternatives to mining they advocate, must be undermined in the public’s eye.

This ruling no doubt assists that goal. DM


Daily Maverick

Hali Healy

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