THE traditional community of the Bapo ba Mogale — on whose land Lonmin’s Marikana mine is situated — has levelled accusations that Shanduka founder and ANC deputy president Cyril Ramaphosa irregularly acquired his majority stake in empowerment vehicle Incwala in 2010.
The Bapo allege that Lonmin “unlawfully” denied the community their “pre-emptive rights” to become the majority shareholder in the empowerment deal when the deal ran into trouble, and instead offered the stake to Mr Ramaphosa.
The allegations add a new level of intrigue and complexity to Lonmin’s troubles at the Marikana mine, which is yet to recover from the tragic events last August when 34 miners died at the hands of police following industrial action.
Mr Ramaphosa is expected to give evidence at the Farlam commission of inquiry into the tragedy after it emerged that he had urged the police to use “concomitant force” to dismiss the strikers.
The Bapo appealed to the commission in June to be given an opportunity to cross-examine Mr Ramaphosa during his evidence.
However, the Marikana commission has brushed off efforts by the Bapo to be allowed to question him. His appearance is yet to be finalised, pending a decision by President Jacob Zuma to extend the commission’s deadline or not.
Business Day has seen a series of e-mails between June and last month showing that the Marikana commission had declined a request by the Bapo ba Mogale to cross-examine Mr Ramaphosa.
The aggrieved Bapo ba Mogale community are also at the centre of controversy over the North West provincial government’s management of the so-called D-Account. This is a bank account of the tribal council in which royalties paid by mining companies are kept. At least R400m is missing from the community’s funds.
Unlike the Bafokeng tribal council, also in Rustenburg, the Bapo ba Mogale does not have an equity stake in mining operations in its area.
In written submissions to the Marikana commission, the Bapo ba Mogale said Mr Ramaphosa had been aware of the irregularities in the Shanduka empowerment deal, which he concluded with Lonmin three years ago.
It said the Marikana tragedy happened after anger towards Lonmin had built up already. This happened amid claims that the platinum miner had “unlawfully” denied the community its “pre-emptive rights” to become the majority shareholder in the empowerment deal, and instead roped in Mr Ramaphosa.
The Marikana commission said in reply that the matter was “not relevant in respect of any of the topics falling under phase one of the commission’s inquiry”.
The inquiry had been divided into two phases in a bid to speed up proceedings. The first phase deals with events in the week leading to August 16 and the legal responsibilities of Lonmin, the police and the unions. The second deals with the underlying causes of the tragedy.
It was also not clear whether Mr Ramaphosa would be called to testify in the second phase of the commission.
Shanduka acquired a 50.03% shareholding in Lonmin’s empowerment vehicle, Incwala Resources, in 2010. Incwala was established in 2004. In 2009 Incwala was reportedly in financial trouble and other empowerment partners opted to sell their stakes. Lonmin had to rescue the empowerment deal or face the possibility of losing its mining licence, sources said.
Lawyer for the Bapo ba Mogale Hugh Eiser said yesterday although Lonmin and the Industrial Development Corporation were shareholders of Incwala, only BEE-qualified shareholders were entitled to acquire the shares in question.
“This reveals the community’s pre-emptive right to acquire all the shares that Shanduka acquired to the exclusion of Shanduka, which was not a shareholder of Incwala,” Mr Eiser said.
“Mr Ramaphosa was obviously involved in every detail and knew precisely what was being done to avoid the community exercising its pre-emptive right, so his company could get the shares,” he said.
Lonmin spokeswoman Sue Vey said last week she was unable to get comment. A spokeswoman for Shanduka, Thandi Moticoe, said: “We suggest you contact Lonmin as they would be in the best position to respond .”
Mr Eiser said on Monday the community has been unable to take the dispute over the shares to court because the North West government had delayed election of a traditional council for the Bapo ba Mogale — which would be the legal body able to take the matter to court.