In the presence of the two Deputy Ministers, stakeholders gave a progress report on the MalaMala land settlement including the N’wandlamarhi Communal Property Association (CPA), Mintirho Trust, Mondzo, the Commission on Restitution of Land Rights and Gilfillan Du Plessis Attorneys.
The N’wandlamarhi CPA reported that government purchased MalaMala from the previous owners in October 2013 and the property was registered in the name of the CPA. A new company was created and the land leased back to MalaMala Game Reserve. The CPA was the owner of the property. Members were families who lived on the property known as MalaMala and Sabi Sands. The NCPA Executive Committee consisted of duly elected community representatives. The CPA stated that R16 million had been distributed to the beneficiaries, verified in 2009 by the Department of Rural Development and Land Reform. In 2015, R10 000 was distributed per household for 250 households; in 2016, R60 000 was distributed per household; in 2017, R30 000 was distributed per household and in 2018, R60 000 was distributed per household.
Mintirho Community Development Trust reported that the Trust was established in 2017 with the purpose of receiving tourism levies to invest into community development with a particular focus on education and development, women and youth empowerment and cultural advancement. Beneficiaries included the CPA members and residents of the 11 villages in the vicinity of MalaMala. Whilst the Trust was new it had made good progress. A bursary programme was implemented in 2018 with 14 students funded and graduated in accredited hospitality and tourism courses. In 2019, 20 students were funded. A small business development programme was in the pipeline to support initiatives such as vegetable gardens, craft market projects and technical skills. There were also plans to drill boreholes and install communal water points in the community.
Mondzo represented the CPA and was the 30% shareholder along with Ratters Pty Ltd that held 70% in the MalaMala Game Reserve. The income was to be used to benefit CPA members. The community shareholding in MalaMala Game Reserve was: In the first five years, Ratters shareholding was 70% and Mondzo 30%. From 6 to 10 years, Ratters shareholding was 60% and Mondzo 40%. From 11 years on, Ratters shareholding was 50% and Mondzo 50%. MalaMala had paid annual dividends of 50% of operating profit and 30% of the dividend was paid to Mondzo. This was held in a trust account by Gilfillan Du Plessis Attorneys.
Mondzo noted that it was facing some challenges. The CPA was sued by the investment company; however, the matter was settled. There was also an application to place the CPA under administration and the judgment on this matter was still pending. The land claim was technically still in the Constitutional Court. The other challenge was that the Mavhuraka community claimed the right to become members of the CPA but a resolution was taken not to include the Mavhuraka community in the CPA.
Gilfillan and Du Plessis Attorneys reported that the CPA money was deposited in the Attorneys Trust Account and in 2016 was transferred to the CPA Trust Account. No more information was provided and the Portfolio Committee insisted it needed a written financial report, which was unavailable.
The Commission on Restitution of Land Rights spoke about the steps taken to finalise the land that used to be owned by MalaMala Game Ranch. During the 15-16 November 2018 oversight visit to MalaMala, the Committee had requested the Commission to provide it with a status report on (i) the land settlement, (ii) verification process, and (iii) benefits not reaching all beneficiaries.
The Commission reported that the land was settled through negotiations. In May 2008, an offer of R751 737 492 was made (inclusive of 392 hectares initially not gazetted). This included improvements to the value of R66 169 492. The offer was based on R52 000 per hectare for 13 184 hectares. The offer was accepted by the landowners, however subject to ministerial approval. This offer was rejected by the then Minister on the basis that it was exorbitant and unaffordable for the state. After settlement negotiations collapsed, this matter was referred to the Land Claims Court for adjudication in 2009. The court accepted that the claimants had a valid land claim. The only issue to be determined was whether restoration was feasible within the meaning of section 33(cA) of the Restitution Act. The claimants had formed a CPA called N’wandlamharhi to function as a governance structure responsible for land administration and it comprised 15 committee members. The CPA had experienced internal strife and tensions around leadership, the beneficiary list and financial accountability. However, the joint venture business was operating well.
The Commission said that there were membership disputes and a decision was taken in April 2016 to conduct a re-verification. The CPA appointed a company to do the work, but the verification attempt failed. The CPA chairperson and other members of the CPA Executive Committee resigned in 2016. The Minister instructed the Provincial Shared Services Centre (PSSC) to take the CPA to an elective AGM no later than end of October 2016. However, the AGM could not proceed as the beneficiary list was outdated. Consequently, the beneficiaries resolved that an Interim Committee oversee the verification process. Seven members of the CPA were appointed as Interim Committee tasked to oversee verification. The PSSC then called the Interim Committee and advised it that it did not have the power to administratively run the CPA office but it was mandated only to oversee verification. However, the Interim Committee approved dividend payments and use of the CPA revenue for transactions that were unreported for 2016, 2017 and 2018. The Department informed the Interim Committee that they were not authorised to run the CPA. Letters of compliance were issued to the CPA on 6 March 2017 and 12 April 2018.
On the question of status verification, the Commission reported that a verification specialist was again appointed to re-verify legitimate beneficiaries of the Mhlanganisweni and Mavhuraka communities. Two attempted AGMs in May and June 2018 failed due to disruptions. In December 2018 a report on the Mhanganisweni group was submitted. Total number of re-verified and registered Originally Dispossessed Individuals (ODIs) for the Mhlanganisweni group was approximately 448. Only after the Committee visited MalaMala, did the Mavhuraka group commit to the verification process in December 2018 and the conclusion date was scheduled for end of February 2019.
The Commission asked the Committee to recommend an urgent ex parte application for these court orders:
- To freeze the CPA bank account;
- To prohibit Gilfillan and Du Plessis from depositing or moving monies meant for the PCA beneficiaries;
- To interdict any transfer of funds between Mondzo and MalaMala Ranch (Pty) Ltd;
- To compel the Interim Committee to comply with the CPA Act.
The Commission concluded by stating (i) that the verification would be finalised and adopted by the two claimant groups by end of February; (ii) that the verification would be presented to the PSSC so as to support them with the implementation of the long awaited Elective AGM of the CPA; and (iii) that applications to the court would be filed by end February 2019 and all documents would be made available to the Department to exercise its authority over the CPA as per the CPA Act.
Committee members expressed their unhappiness about the absence of written financial statements from the CPA, Gilfillan Du Plessis Attorneys and Mondzo. Members felt the stakeholders were hiding information and that what the beneficiaries had told them during their oversight visit was true that their leaders were mismanaging profits. They also did not understand why the Mavhuraka community was sidelined when it was a signatory to the CPA constitution. The Committee insisted that the former CPA treasurer, Mr Derrick Mthabine, speak under oath as all the problems appeared to be caused by him. Even though he spoke under oath, the Committee was not convinced that he was telling the truth. The Committee agreed that the behaviour of the stakeholders was unacceptable and undermined the authority of Parliament. The Committee endorsed the Commission recommendations.
MalaMala Progress Report
The Chairperson noted apologies from the Minister and Director General. She said that after several media articles about MalaMala, and after receiving complaints from the people of MalaMala, the Committee decided to conduct an oversight on 15-16 November 2018.
The Committee met with stakeholders, including the CPA Interim Committee, but the members of executive were not there. The Committee rather met with other structures. On the second day of oversight, the Interim Committee joined, but the Committee decided that it would not entertain the Interim Committee because the oversight was scheduled to take place on the first day. However, the Interim Committee was invited to attend today’s meeting. The attorney was invited to brief the Committee on finances. The CPA and Mondzo were also invited. All these stakeholders would be given an opportunity to present.
Deputy Minister Candith Mashego-Dlamini said that they were present to comply with any decision taken by the Committee. She noted that these land issues went back to 2013. The Department submitted itself to the Committee and Commission.
N’wandlamarhi Communal Property Association (NCPA) briefing
Mr Thomas Mthombeni, Secretary: CPA, started by providing the background to the MalaMala land restitution. Government purchased land from the previous owners in October 2013 and that property was registered in the name of N’wandlamharhi Communal Property Association. As a result, a new company was created as MalaMala Game Reserve (Pty) Ltd and land was leased back to MalaMala. The key institutions involved in MalaMala were N’wandlamarhi CPA, Mintirho Trust, MalaMala and Mondzo.
Mr Mthombeni said that NCPA was the owner of the property and leased the land to MalaMala Game Reserve. CPA members were families who lived on the property known as MalaMala and Sabi Sands with the exclusion of the farms, Willingford and Exeter. The NCPA Executive Committee consisted of duly elected community representatives. The CPA’s strategic goals were to (i) manage the land in a transparent and profitable manner; (ii) build an effective and sustainable organisation; (iii) develop the capacity of the association, its leadership and members; (iii) improve economic self-reliance and cultural and social wellbeing of members; (iii) community projects to benefit the CPA and broader community; and (iv) effective information and communication.
Mr Mthombeni briefed the Committee on the NCPA’s benefits. R16 million had been distributed to the beneficiaries, verified in 2009 by the Department of Rural Development and Land Reform (DRDLR). In 2015, R10 000 was distributed per household for 250 households; in 2016, R60 000 was distributed per household; in 2017, R30 000 was distributed per household and in 2018, R60 000 was distributed per household.
Mr Mthombeni reported that the NCPA office and community hall were under construction.
Mintirho Community Development Trust briefing
Ms Virginia Bachoo reported that the Trust was established in 2017 with the main purpose of receiving tourism levies and to invest it into community development with a particular focus on education and development, women and youth empowerment and cultural advancement. There were five trustees, one of which was appointed by MalaMala. Beneficiaries included the CPA members, families and residents of the 11 villages in the vicinity of MalaMala. Whilst the Trust was fairly new it had already made significant good progress. A bursary programme was successfully implemented in 2018 with 14 students funded and graduated in accredited hospitality and tourism courses. In 2019, 20 students were funded. Additional students were expected to be recruited in the second half of year. A Small Business Development programme was in the pipeline to support small business initiatives such as vegetable gardens, craft market projects and technical skills. There were also plans to drill boreholes and install communal water points in the community for people to have access to water.
Mr Ellem Mkhonto, Mondzo chairperson, stated that Mondzo represented NCPA and was 30% shareholder along with Ratters Pty Limited (Ratters) holding 70% in MalaMala Game Reserve. The income ought to be used to the benefit of CPA members. The community shareholding in MalaMala Game Reserve was as follows: In the first to five years, Ratters shareholding would be 70% and Mondzo 30%. From 6 to 10 years, Ratters shareholding would be 60% and Mondzo 40%. From 11 years on, Ratters shareholding would be 50% and Mondzo 50%. Mondzo was represented on MalaMala Board. In the first five years, Mondzo had two board representatives and thereafter three representatives.
Reporting on the lease agreement, he stated that MalaMala paid annual dividends of 50% of operating profit and 30% of the dividend was paid to Mondzo. In its first year, MalaMala paid a dividend of R40 million, equivalent to 83% of the after tax profit of the 2017 financial year. R12 million (30%) was paid to Mondzo.
Mondzo transferred R6 million to the CPA in 2016-17. R10 200 000 was received in 2017/18. The amount was held in a Section 78 trust account of Gilfillan Du Plessis Attorneys attorneys.
Mr Mkhonto reported on lease rights and lease periods and fees. He explained there were two aspects to the lease agreement: the MalaMala Exclusive Use area and the Charleston undeveloped area. The lease was effective for 20 years but the Charleston lease commenced from the time the business was developed. The minimum lease fee for MalaMala was R450 000 per month whereas Charleston was R200 000 per month. There was a variable lease fee to the CPA.
Mr Mkhonto stated that Mondzo was facing certain challenges and that these challenges would be reported on by the attorney.
The Chairperson said that the institution should report on its own challenges. Challenges should not be reported to Parliament through a legal representative. There was no case to answer to. The attorney had been called to respond to issues relating to finances.
Mr Mkhonto responded that he was hoping that the attorney report on the challenges but it would be no problem to take the Committee through challenges. The challenges were twofold: litigation and the Mavhuraka membership dispute. The NCPA was sued by the investment company; however, the matter was settled. There was also an application to place the CPA under administration and the judgment on this matter was still pending. The land claim was technically still in the Constitutional Court. The other challenge was that the Mavhuraka community claimed the right to become members of the CPA but a resolution was taken not to include the Mavhuraka community in the CPA.
The Chairperson said that the attorney should proceed and provide the report on finances. The Committee would like to know how much money was deposited in the Attorneys Trust Account and when such monies were deposited, and how much was taken from that account and when the money was taken.
Gilfillan Du Plessis Attorneys briefing
Ms Louise du Plessis, Attorney at Gilfillan and Du Plessis Attorneys, reported that it was section 78 trust account. The CPA money was deposited in the trust account and in 2016 was transferred to the CPA trust account.
The Chairperson said that the Members would like to engage with a passion and thus needed a report. Members would like to know how much was initially deposited in the trust account, how much was spent and how much transferred. All this information was needed. How much was deposited in the account in 2016, 2017 and 2018?
Ms du Plessis responded that she did not have all those details.
Mr K Robertson (DA) said he had hoped that the attorney would have come with a written report so that members could work from it. It would be difficult to accept the figures provided verbally by the attorney if there was no document to use when double-checking those figures.
The Chairperson agreed. She emphasised that the invitation sent to stakeholders indicated that they should prepare a detailed report. The invitation made it clear which matters to report and how to report. Members were not keen on a verbal report. She should have either prepared a report or a presentation. A verbal report should be supported by a written report.
Ms du Plessis responded that she had audited reports from 2013 to 2016. Other reports were still with auditor. These written reports would be made available soon.
Mr P Mnguni (ANC) thought that, being armed with audited reports for the 2013-2016 periods, she could have provided accurate information. She could have come with at least a three page written report. He asked if the attorney’s background was that of an accountant so that she could be trusted with her verbal report. There was a need for a balance sheet.
Mr E Nchabeleng (ANC) remarked that there was a need for written financial report indicating how each decision was reached, how much was paid and what was the balance. There ought to be a report indicating dates on which money was deposited or withdrawn.
Mr Robertson asked if they were committed to put in a court application to freeze the account. If this was the case, there should be documents to support this. It should be borne in mind that the state had paid a lot of money.
Deputy Minister Mashego-Dlamini agreed with the Chairperson about the invitation sent out. All the presenters knew what they were doing. They were aware of the need for preparation of report or presentation. She asked what Ms du Plessis was doing in Parliament if she came without a written report.
Ms du Plessis responded that she was an attorney and not an accountant or financial officer or auditor. She was not expecting that all the questions would be directed to a financial report. She was expecting to address how money was transferred from the Attorneys Trust Account.
The Chairperson asked why she did not prepare a written report. The Committee would like to know about the flow of revenue or income, how money was used, when money was spent and how much, and what was the balance. Members would like to know about the cash flow.
Ms du Plessis responded that it would be difficult for her to provide Members with all that information.
Mr Mnguni asked if the trust account was audited.
Ms du Plessis responded in the affirmative.
Mr Mnguni expressed his unhappiness as much cost went into convening this meeting. No one could deny that it was a very expensive meeting due to the number of people whose travelling costs were covered by taxpayers. Traditionally, no one could expect to attend a meeting unprepared especially where the meeting occurred at the public expense. Parliament was not a court of law where lawyers were needed; hence Parliament would like to speak to the public servants or officials directly. He agreed with Mr Robertson that there should be a written financial report that would take Members through what the CPA had engaged in and spent on. He suggested that the financial report should be prepared and submitted to the Committee by 5 March. He reiterated that it was a big meeting and people should not be brought to Parliament on the state purse if they were not going to do their job. He asked if people’s travelling costs would be covered for attendance of a meeting if they were unprepared.
Mr M Filtane (UDM) said that the attorney seemed unsure what information should be submitted to Parliament but, as a lawyer, she had to know what to present to Parliament. She had so much time to prepare, but she did not. If this was the case, how could it be concluded that she was helping the CPA. She was not cooperating neither with Parliament nor the government and thus was not helping the public. He suggested that Ms du Plessis should be replaced as she was not discharging her duties. Should she not be replaced, the Committee would take full responsibility.
Mr Robertson suggested that they should move forward; consider and deliberate on other matters.
The Chairperson asked Ms du Plessis to which account the money was transferred.
Ms Nomfundo Ntloko-Gobodo, Chief Land Claims Commissioner, responded that money was first put in the Attorneys Trust Account and was later transferred to the CPA Trust Account. The Commission tried to get information on this but it did not succeed.
The Chairperson insisted that Ms du Plessis should respond.
Ms du Plessis responded that money was transferred on the request of the CPA Committee. The Committee took the decision. Dividends paid to Mondzo. The CPA and Mondzo had separate accounts.
The Chairperson said that the situation at hand was very confusing and complex.
Mr A Madella (ANC) remarked that it was important that the attorney should provide a financial report consisting of all the details.
Mr Robertson stated that, in his view, the major issue was: who was benefitting?
The Chairperson said that they all knew how this situation developed. The issues ranged from money to division. She then asked why there was a division at this stage and if Mr Derick Mthabine could explain why this was happening. This matter was serious and she requested a five minute break so that a parliamentary legal advisor could be called to attend the meeting.
After the break, the Chairperson gave an opportunity to the Commission to brief the Committee on the MalaMala Game Ranch settlement and the CPA, whilst waiting for the legal advisor. The attorney would be allowed to present when she has a written report.
Commission on Restitution of Land Rights briefing
Ms Nomfundo Ntloko-Gobodo, Chief Land Claims Commissioner, noted that during the 15-16 November 2018 oversight visit to MalaMala, the Committee requested the Commission to provide it with a status report on (i) the land settlement, (ii) verification process, and (iii) benefits not reaching all beneficiaries.
Ms Ntloko-Gobodo stated that the land was settled through negotiations. In May 2008, an offer of R751 737 492 was made (inclusive of 392 hectares initially not gazetted). This included improvements to the value of R66 169 492. The offer was based on R52 000 per hectare for 13 184 hectares. The offer was accepted by the landowners, however subject to ministerial approval. This offer was rejected by the Minister on the basis that it was exorbitant and unaffordable for the state. After settlement negotiations collapsed, this matter was referred to the Land Claims Court for adjudication in 2009. The court accepted that the claimants had a valid land claim. The only issue to be determined was whether restoration was feasible within the meaning of section 33(cA) of the Restitution Act. The claimants had formed a CPA called N’wandlamharhi to function as a governance structure responsible for land administration and it comprised 15 committee members. In support of the CPA, there were four sub committees (Social Cohesion Committee, Technical Committee, Economic Committee, and Governance Committee). Each Committee consisted of four people. The CPA was experiencing internal strife and tensions around leadership, the beneficiary list and financial accountability. However, the joint venture business was operating well.
There were membership (verification) disputes. Therefore, a decision was taken in April 2016, to conduct a re-verification. The CPA appointed Zamangwane (Pty) Ltd to do the work, but the verification attempt failed. The chairperson and other members of the executive committee resigned in 2016. The Minister instructed the Provincial Shared Services Centre (PSSC) to take the CPA to an elective AGM no later than end of October 2016. However, the AGM could not proceed as the beneficiary list was outdated. Consequently, the beneficiaries resolved that an Interim Committee oversee the verification process. Seven members of the CPA were appointed as the Interim Committee tasked to oversee verification. The PSSC then called the Interim Committee and advised it that it did not have the power to administratively run the CPA office but it was mandated only to oversee verification. However, the Interim Committee approved dividend payments and use of the CPA revenue for transactions that were unreported for 2016, 2017 and 2018. The Department informed the Interim Committee that they were not authorised to run the CPA. Letters of compliance were issued to the CPA on 6 March 2017 and 12 April 2018.
On the question of status verification, Singwane & Partners received instructions from the Land Rights Management Facility for a verification specialist to re-verify a list of legitimate beneficiaries of the Mhlanganisweni and Mavhuraka communities in the affected properties (approximately 65 000 hectares) that are subject to restitution of the N’wandlamharhi community. Two attempted AGMs in May and June 2018 failed due to disruptions. In December 2018 a report of all the farms that fell within the Mhanganisweni boundary was submitted. Total number of re-verified and registered Originally Dispossessed Individuals (ODIs) for the Mhlanganisweni group was approximately 448. The total number of approximately 5 589 beneficiaries was verified through the family trees. Only after the Committee visited MalaMala, did the Mavhuraka group commit to the verification process in December 2018 and the conclusion date was scheduled for end of February 2019.
Ms Ntloko-Gobodo reported on commitments made by the Land Rights Management Facility (LRMF). The Commission committed to make an urgent ex parte application for the following court orders:
- To freeze of the CPA bank account;
- To prohibit Gilfillan and Du Plessis from depositing or moving monies meant for the PCA beneficiaries;
- To interdict any transfer of funds between Mondzo and MalaMala Ranch (Pty) Ltd;
- To compel the Interim Committee to comply with the CPA Act.
A counsel, Adv William Mokhare, had undertaken to execute the application before end of February 2019. This approach would allow the Department to request for discovery of documents and records, such as the relevant bank account, to uncover how funds had been used.
Ms Ntloko-Gobodo provided the Committee with the Mondzo financial report. Mondzo had entered into a Joint Venture with Ratters (Pty) Ltd on 1 March 2016. The turnover for 2018 was R119.7 million and Mondzo’s share of 30% stood at R10.2 million. The 2017 share was R12 million. From the R12 million Mondzo paid a dividend of R6 million to the NCPA and retained R6 million in the Attorneys Trust Account. The R12.2 million had been kept in Attorneys Trust Account pending the re-verification of CPA members and regularisation of the CPA. A service provider had been appointed by the CPA to put in place policies and procedures for Mondzo as well as operationalising the company to meet its objectives.
Ms Ntloko-Gobodo concluded by stating (i) that the verification would be finalised and adopted by the two claimant groups by end of February; (ii) that the verification would be presented to the PSSC so as to support them with the implementation of the long awaited Elective AGM of the CPA; and (iii) that applications to the court would be filed by end February 2019 and all documents would be made available to the Department to exercise its authority over the CPA as per the CPA Act.
Mr Filtane asked for more details on the verification process and what was the latest information.
Ms Ntloko-Gobodo responded that 5 589 beneficiaries were verified through the family trees.
Mr Robertson asked when the verification would be submitted to Parliament and if the application to freeze bank account would go ahead, as planned. He wanted to get a better understanding of what was going on.
Mr Madella asked if the two verifications had been done in a separate way and whether there was a distinction between the two.
Mr Mnguni remarked that the Committee had been disappointed on the MalaMala oversight visit because all CPA members were not present. The budget was an issue and the shareholders should know that the budget was in Parliament where it was debated and approved. The budget ought to be directed at approved programmes. It was unacceptable to undermine Parliament. This meeting was the second time they tried to undermine Parliament. This was irresponsible and unacceptable. They had no conscience and they had not tendered an apology. Members would like to know about the Trust Accounts, how many new appointees there were, how much they were paid and who authorised the expenditure on those funds and to what account. Parliament was being undermined and turned into a “banana” parliament.
The Chairperson said that she had many questions on how money was transferred from the Attorneys Trust Account to the CPA Trust Account. She wanted to know how many beneficiaries benefitted. It was problematic that there was no CPA Executive Committee and no financial report. There was no one who could provide answers to these questions or provide information on the verification process. When the Committee visited MalaMala, she discovered that all problems centred around Mr Derrick Mthabine. Mr Mthabine should respond.
Mr Derrick Mthabine, NCPA treasurer, responded that during the November 2018 visit, he responded to some of questions posed. On the beneficiaries, he responded that some students were benefitting from the bursary programme.
Mr Mnguni interjected and stated that a stakeholder could not respond on behalf of another stakeholder.
Mr Mthabine noted this and said that he was speaking as a community member. He said that MalaMala was paying an engineer R40 000 a month to try to put everything together. The second question was who authorised the expenditure. The community members did. The Interim Committee was given a mandate by community members. However, the community was not taken into consideration in terms of the terms of reference.
The Chairperson stated that there was contradiction between the community and the Interim Committee. Some stated that the community was consulted. If there were consultations, the community would have been aware that this was Interim Committee that would assist in the verification processes. Yet, the Interim Committee took the community for granted. When the Portfolio Committee members visited MalaMala, they met with beneficiaries. They were complaining about seeing things happening but beneficiaries were not consulted. They did not attend meetings. They were divided into two groups: Mavhuraka and Mhlanganisweni. She asked which community was part of the decision making process because Mavhuraka and Mhlanganisweni were one community according to the presentation. The communities were complaining that money was being generated and they were not aware of how it was spent. Some were being employed but those who speak out were being sidelined and were not being allowed to be part in the meetings. If the Interim Committee claimed that the community participated in meetings, they should prove this by submitting minutes to Parliament. It was the minutes that would state who participated and what resolutions were taken.
Mr Mthabine responded that only Mhlanganisweni community was verified and thus CPA members.
The Chairperson said that Mr Mthabine should proceed but he ought to speak under oath. From this point, he should speak knowing that should he intentionally mislead Parliament, there would be a criminal consequence. He should know that information he is giving is the truth and is binding. He should know that everything he says is the truth and nothing else but the truth.
Mr Mthabine responded that all the challenges being reported to Parliament would be ruled on by the court in March 2019. For this reason, he pleaded with the Chairperson to be afforded an opportunity to consult their legal team first and, secondly, have a meeting with the Department. After consultations, he would be back and respond to all matters. When he came to report to Parliament, he thought that it was an ordinary meeting and now it looked like the development would lead to legal litigation. The consultation of a legal team was important because even the Chairperson had called in her legal advisors.
The Chairperson reiterated that she was only asking him to state that what he was saying was the truth and nothing but the truth. The oath formed part of parliamentary process.
Mr Mthabine responded that he was warned that anything he could say could be used against him in a court of law. That was a problem. For that reason, he wanted to go and consult the legal team and report back to Parliament in the form of an affidavit to all questions being asked.
Mr Mnguni remarked that Mr Mthabine should take an oath and show Parliament that he was confident in what he said. In Parliament only the truth ought to be told. The Chairperson calling in legal advisors should not be confused with calling lawyers for legal representation. The parliamentary legal advisors advise the Portfolio Committee on certain legal matters and how Members should go about those matters. The Chairperson did not call in legal advisors because she wanted to take the matter to court or to sue stakeholders. They should not shake because they think they would be taken to court. It should be understood that the oath was necessary as a part of parliamentary procedure.
Mr Mnguni said that Mr Mthabine should know perjury is a crime. What was required of him was to attest that he would tell Parliament the truth in his capacity as a reasonable man. The matter could not be classified as subjudice because the matter in question was not yet before the court. When Committee members visited MalaMala, the stakeholders’ lawyer was saying that a parliamentary visit was illegal. The lawyer insisted that Members should be bound by the rule of law. It was fine to ask Members to comply with the rules but it was not fine to request presenters to abide by parliamentary rules. Why does Mr Mthabine not want to do things legally? If Mr Mthabine did not take the oath, there should be a serious consequence. Members would have no other choice but to be forced to take a binding resolution. Members could take a resolution to summon him. Issues should be resolved on the basis of the original power of Parliament without being compelled to take a resolution.
Mr Robertson seconded this. He was of the view that the reason the attorney did not bring the necessary written report was due to her acting under the CPA and Mondzo instructions.
Ms du Plessis objected and said that she was not instructed not to bring a report.
The Chairperson said that if a person refused to take an oath, that person was committing a crime, too. Mr Mthabine should not have a problem answering if he knew he was telling the truth or speaking to the facts. Mr Mthabine was asked to appear before Parliament after a presentation that demonstrated that he was a part of all the problems. In 2013, he signed the constitution establishing the Mavhuraka and Mhlanganisweni communities into a CPA. He was also a member of the NCPA Board of Directors. He was the person who knew the operations of all stakeholders and who could respond to everything Members wanted to know.
Mr Mthabine agreed that he was involved in the various processes and that he could take Members from where these initiatives started, how matters developed, and where these matters now stood. He had no problem giving this information, but he was not at liberty to speak if what he would say could be used against him. He started being involved in the MalaMala matters as from 2008.
The Chairperson reiterated that he should not proceed unless he took an oath.
Mr Mthabine took the oath.
Mr Mthabine said that in 2008, his father, who later passed away, was one who was collecting money for the CPA so that they could be able to afford a legal team who would assist them with court litigation. This was achieved. In 2012, the community was in a court, and the matter went through the Supreme Court of Appeal and the Constitutional Court. That was the process that led to where things were. During court litigation, a lot of things happened. When we went to court, we only needed one thing: our land. The then Minister told us that we were the first community to claim our land through litigation. Most of the other communities wanted money, and not the land. Our community was different because we wanted to work on our land. The community continued to have meetings. It had also meetings with the Department. The land was bought in 2013 by the state. Initially, it was the Mhlanganisweni community and it was never the Mavhuraka community. The submissions to Parliament speak about Mhlanganisweni. At the time of purchasing, there was a meeting between the Mhlanganisweni, the Mavhuraka and the Department. The Department included the Mavhuraka. This was when the constitution was established. The Mavhuraka adopted and signed the constitution. Although these two groups signed the constitution, they never had a meeting together up to today. From that time until today, Mavhuraka members had not been verified. We were told that 900 beneficiaries could benefit from the purchased land and this led to the need to investigate or verify from where a beneficiary came. This verification never took place. This did not mean that there was no solution about that. The Department needed to go to the people and find out from them what could be a solution.
The Chairperson asked if the Department consulted people on these issues. Could anyone explain how the Mavhuraka was a signatory, but did not form part of the processes?
Mr Robertson asked if the Mavhuraka was not included, how its exclusion could have affected the outcome.
Ms Ntloko-Gobodo responded that all communities attended the meeting and some were appointed to participate in the negotiation processes. This happened every time. The Department made sure that the broad community was represented. Even if the matter was in court, it was understood that it was one community and not two communities. In the Constitutional Court, there was no objection that the community was one. It was also incorrect to say that there was no verification of the Mavhuraka. The community was verified. The Interim Committee was elected under the CPA constitution and tasked to protect the interest of these two communities, and not one community. There was no reason to base one’s claim that the Mavhuraka was not represented by the Interim Committee.
Mr Mthabine said that there was a change of mind. The change of mind did not come from the representatives but from the people. Some people were coming from Kruger National Park and the Mavhuraka was not part of the whole process and was not a part of the membership and it had not been verified.
The Chairperson asked if the CPA constitution was binding. If yes, why should there be a change of mind?
Mr Mthabine agreed that the CPA constitution was binding, but the Chairperson should look to the provision on who could be a member.
Mr Filtane said that there were contradictions in what Mr Mthabine was saying. He noted that the Department brought together both communities: Mhlanganisweni and Mavhuraka. This happened under the Department instruction.
Mr Robertson agreed that the Mavhuraka should be involved, but asked how the decision was arrived at for Mavhuraka to be involved.
Ms Ntloko-Gobodo responded that the decision was drawn from the Constitutional Court judgment.
Mr Robertson asked why the then Minister stated that the initial price was exorbitant.
Mr Nchabeleng objected to this question and stated that Members should focus on Mr Mthabine’s statement. Mr Mthabine said that the CPA constitution was signed by two groups, but his statement was that the Mavhuraka was not part of the process.
Mr Madella said that the Committee should ascertain how the two groups were merged.
Mr Mnguni suggested that the Committee concentrate on the transactions. He wondered if Mr Robertson thought the government purchasing the land was undesirable. He remarked that there was a trip to China and asked how much was spent on that trip and what was the reason for the trip. Why were some beneficiaries benefiting whereas others were not benefiting? Who was getting sponsorship? Why were some were getting whereas other were not getting? Who was eligible and who was ineligible? Responses to these questions did not need to be provided through a lawyer. He said that the R18 million structure he saw when he visited MalaMala was not worth that amount even if he was not a construction engineer.
Mr Nchabeleng supported the motion of commenting on the transactions.
Mr Robertson asked if the R18 million structure was approved by a construction engineer.
The Chairperson asked why the Interim Committee performed tasks that were not within its mandate. Who gave it the mandate to authorise the construction of buildings and the sharing of dividends. Why was there no NCPA Executive Committee? What did transparency mean according to their perspective? Who took the decision that people should go to China and how much did the trip did cost?
Mr Mthabine replied about the contradictions, stating that the two groups signed the CPA constitution, but there were conditions to meet to become a member, including verification. The Mavhuraka was not verified.
The Chairperson disagreed. The Mavhuraka was verified and the verification process would come to an end at the end of February 2019.
Mr Mthabine replied that the Chairperson’s question touched on the matter of who was eligible to be a member in terms of the constitution. The trip to China was a Department initiative and participants came from across the country and not only from MalaMala. On the R18 million structure, he would take note of it and would find out the details. On the question of how much a legal advisor was paid, they were paid in terms of their time and work. However, there were contracts that were signed without the knowledge of community. People get a lot of money for legal advice. Legal advisors would invoice for the work they had done. He was not aware if they were paid hourly or per day.
Mr Jacob van Garderen, NCPA Legal Advisor, stated that he was being paid R35 000 per month.
The Chairperson stated that it was a lot of money and asked if he was providing legal services to the community or the Interim Committee and who had appointed him.
Mr Mnguni agreed that the salary was a lot of money.
Mr van Garderen replied that he was appointed by the Interim Committee and his work included advising the broad NCPA.
The Chairperson asked what he was advising the Interim Committee about. The Interim Committee was tasked with verification but it was behaving as if it had all the powers to decide on everything, including eating as much money as they like. They were deciding on recruiting people and paying them high salaries. Who gave them such power?
Mr Nchabeleng stated that Members should move to consider the Commission recommendations. Members should not convene to discuss these issues again.
Mr Mnguni said he would like to know the competence of Mr van Garderen and in the report he should focus on his legal expertise. He agreed that the people recruited might be incompetent and they were not taking into account demographics. Did they consider transformation? Were women being recruited? Were disabled people being given opportunities?
The Chairperson stated that the NCPA should give a brief overview of its financial statements.
Ms Sylvia Tonga, NCPA accountant, responded that there were documents that could be made available to provide financial statement information.
Mr Robertson asked when she learnt that she would brief Parliament.
The Chairperson pointed to what was happening in the meeting and said it seemed as if they were hiding information. She asked what they came to do in Parliament. How could they travel from MalaMala to Cape Town to state that they were unprepared?
The Chairperson wanted to know how the NCPA Trust Account was managed and asked the NCPA chairperson to respond.
Mr Mthombeni began to speak but the Chairperson interjected that he was the deputy chairperson and could not respond.
Ms du Plessis explained that the NCPA chairperson left the meeting because he was feeling sick.
The Chairperson said that they were taking Parliament for granted. The NCPA chairperson travelled from MalaMala to come and present but he left the meeting without tendering an apology to go and sleep in his hotel room. This was not acceptable and could not be tolerated.
Mr Mnguni remarked that the stakeholders were behaving in a disappointing and unacceptable manner. It was a shame on them. How could someone go back to sleep in a hotel room when a meeting was still on?
The Chairperson asked the Deputy Minister to respond to the behaviour of the NCPA chairperson.
Mr Robertson asked what could be the status of verification; hence R3 million was paid to lawyers.
Mr Mthombeni said that the Mavhuraka was not verified. Only 900 people were verified as handed to the Interim Committee by Mr Mthabine.
The Chairperson asked where Mr Mthabine got the list.
Mr Mthabine replied that the verification of Mhlanganisweni was made by the Department in 2009. The verification list provided to the Interim Committee was not an official list.
The Chairperson stated that Mr Mthabine was the cause of all the problems. Beneficiaries talked about nepotism because the people in the leadership were related. Mr Mthabine was everywhere one went. All would refer to Mr Mthabine for a response. He had adopted a strategy to come with the elders who would cover for him, but the question was not about the age of the people supporting him, but the facts.
Deputy Minister Mcebisi Skwatsha said that Members should deliberate on the basis of the information that had been proffered. It was very shocking to see how matters were unfolding.
Mr Robertson said that challenges experienced by the MalaMala people illustrated the difficulties of transformation in South Africa.
The Chairperson concluded that the presenters were hiding information and that what beneficiaries had told Members during its oversight visit was true, that the list of beneficiaries was confusing, that there was no information provided about the Trust Accounts and that there was no information provided on the R18 million structure. The trip to China was justified but more information was still needed. She said that the community ought to be engaged and the Committee supported the recommendations made by the Commission. However, the Portfolio Committee would take a resolution on this.
Minutes of 13 February 2019 was adopted and the meeting was adjourned.