In June 2015, I attend a government-funded career exhibition in Zandspruit. The event is hosted by the City of Johannesburg in partnership with a local NGO to mark Youth Day, a national holiday that commemorates the 1976 student protests against the apartheid education system. The organisers promise a line-up of speakers, including representatives from various technical colleges, universities, the Department of Labour, the youth desk at the local police station, and the National Youth Development Agency (NYDA) that was set up in 2008 to address youth development issues at national, provincial, and local government level. I arrive late and find a seat in the back row of chairs set up in the school’s driveway. A woman from the NYDA stands up to speak just as I arrive. ‘Do you want to see yourself somewhere someday – to move from here to Sandton or Honeydew [upmarket suburbs in Johannesburg]?’ she asks, before admonishing young people for the next ten minutes for not prioritising their education or making use of government initiatives to help them start their own businesses.

The next speaker is a police officer who oversees the youth desk at the local police station. He is short, well built, and wears a tight-fitting black golf shirt. The youth desk is a volunteer-based structure at the police station that, at least in theory, aims to involve young people in curbing crime in the community. His pep talk too is more a rebuke than a motivation. ‘Do you want to see yourself in a squatter camp for the rest of your life?’ he asks as he climbs on to the stage. Young people are ‘killing their futures’, he says, criticising them for being more interested in obtaining Carvela shoes worth ZAR 3 000 (USD 183.22) than in furthering their education. ‘Either you suffer now and enjoy the rest of your life,’ he proclaims, ‘or you enjoy now and suffer the rest of your life’ (emphasis added). The police officer, much like the NYDA representative, affirms young people’s aspiration for upward mobility at the same time as he disparages them for being impatient and unwilling to ‘suffer’, or work hard, to improve their lives. The police officer’s criticism that young people are preoccupied with ‘enjoy[ing]’ their lives draws on a widespread stereotype that links young people’s consumer desires to a misguided prioritisation of the present at the expense of the future.

Ancestors are also dispossessed for coal mining. In other words, theylose their place of rest too and so the struggle of the livingagainst extractivism and dispossession is also the struggle of ‘thedead’. This is evident in the accounts of the exhumation and thereburial of ancestral graves in Tweefontein by the heritageconsultants, Professional Grave Solutions (PGS) on behalf ofGlencore mine. For both actors, cemeteries stand in the way ofprofit-making and thus the relocations of graves are a commercialactivity. The disregard for the communities’ cultural rights and thedisrespect of their ancestors is evident in the company's offer of aR1 500 ‘wake-fee’ to families after the removal of their individualgraves. Fundamentally, this illustrates that the contestations overthe relocations are a result of the exploitation of the inherentgaps and contradictions in the mineral and heritage laws, as well asthe lack of compensation guidelines for the grave relocations.

Commercialising the sacred

In 2013, I began to investigate the contestations over grave siteremovals in Tweefontein (in Ogies) by Glencore. A year later, Icontacted the heritage consultants, PGS, who had been contracted bythe previous owners of the mine, Xstrata PLC to facilitate the graverelocations, to request records of their mining operations, theaffected farms and the affected graves. In a meeting with therepresentatives of PGS and the mining company in June 2014, bothparties agreed to share their records with me on the condition thatI put my research on hold for a year to prevent the disruption ofthe relocation process. Although it was not explicitly stated, theconcern was that during interviews, I would conscientise thefamilies and make them think thoroughly and critically about thedemands of the company. After the agreement, I secured an interviewwith the director of the heritage management company, but he and mycontact within Glencore stopped being responsive a few months later.Concerned about time constraints, I turned to the South AfricanHeritage Resources Agency (SAHRA) and its Burial Grounds and Gravesunit, which archives documents such as the applications submitted byPGS for the relocations. The applications and the impact assessmentreports are public documents and were, therefore, obtained indigitised format from the South African Heritage ResourcesInformation System (SAHRIS).

Skeletal bones crushed with pickaxes and mechanical diggers, findingthe deceased in a state of decay and the loss of graves because ofinadequate markings by the North-Coast Funeral Service (North-Coast)are some of the accounts that coal-affected families in Somkheleprovide. Tendele's undignified exhumations took place without apermit from the KwaZulu-Natal heritage body, Amafa aKwaZulu-Natali(Heritage KwaZulu-Natal), commonly known as Amafa. This is despitethe provision by the provincial and national heritage Acts that nograves can be disturbed without permission from the heritage entityand without consultations with the next of kin. Tendele circumventedthe law with the backing – or ignorance – of the MpukunyoniTraditional Council. As a result, the community suffers fromspiritual insecurity – an existential crisis that emanates from notbeing able to connect with their ancestors, who are mediators oflife and death. The violations of ancestral graves are possiblebecause although the National Heritage Resources Act 25 of 1999(NHRA) and the KwaZulu-Natal Heritage Act 4 of 2008 protect gravesas physical sites, their provisions do not articulate the protectionof the incorporeal cultural beliefs attached to cemeteries.

Somkhele grave relocations, 2008

The grave relocations in Somkhele began in 2008 and, unlike Glencorein Mpumalanga, Tendele did not hire a cultural resource managementcompany to facilitate the consultations. The responsibility toinform individual families was given to Tendele's internal staff, aswell as the headmen and the late Chief Mgeza, who are a part of theMpukunyoni Traditional Council. The company circumvented theKwaZulu-Natal Heritage Act 4 of 2008, which functions distinctlyfrom the rest of the country. The Act succeeded the NationalMonuments Council Act, which established Amafa as a statutory bodyin the former province of Natal. The disadvantage of Amafa is thatit is a self-governing unit and is therefore autonomous. In otherwords, in comparison with other provincial heritage structures,Amafa does not report to the National Resource Agency that wasestablished by the NHRA.

Present-day dispossession

At the centre of this account is coal, South Africa's main source ofenergy. Its invasive extraction and burning ranks the country 12thof the highest emitters of greenhouse gases. It degrades theenvironment and contributes to climate change. Another dark side ofcoal and capitalism is illuminated in this book, revealing thedispossession of African communities. Consequently, coal extractionimpels the resuscitation of dispossession as an experiencehistorically related to the colonial and apartheid periods in SouthAfrica. Dispossession during both periods describes the loss of landthrough legislative interventions and processes that led to the ofproletarianisation and de-agrarianisation of African communities.The motive for creating this system is important, but so are theintricate ways in which people were removed. The mechanisms ofdispossession linger, but in more sophisticated ways – more oftenthan not facilitated by gaps in the reformed laws and involve, atbest, indirect coercion and, at worst, violence and death.

In this book, I discuss accounts of dispossession on privateagricultural farmland, mined by Glencore colliery mine inMpumalanga, and customary land in KwaZulu-Natal, where Tendelemining company currently operates. Private agricultural farmland inSouth African history is synonymous with dispossession. Its violentmaking is the foundation of land reform in the post-transitionalperiod. As a space, it offered insight into the fluid constructionand unmaking of home through work, sweat and blood, but also throughancestral connections to the land, generally speaking – and not onlythe farmland that labour tenants were assigned. Their struggles,however, are not different from those of the chiefs’ subjects oncustomary land. Both labour tenant families and communities oncommunal land hold informal land rights and precarious tenuresecurity and are consequently susceptible to dispossession. Thismakes the experience of the loss of homes, land and ancestral gravesin both areas equally grievous.

For example, in both case studies, there were no adequateconsultations about mining and the relocations. Glencore reached itsagreement with the farm owners in Tweefontein and other farms,whereas Tendele concluded its plans with the Mpukunyoni TribalAuthority in Somkhele. But what is the role of traditional authorityin South Africa if the system does not represent the interests ofcommunities in rural areas and does not negotiate and facilitate thebeneficiation of mining in local communities?

Coal-mining relocations from agricultural farmland to Makausetownship, 2012–2016

After Mr Thankga recalled his experience, everyone in the roommurmured in agreement, then it was immediately silent, as if eachperson was recalling their own experience. He then explained thatsoon after his relocation, his livestock was transported about threekilometres away from Makause (the new residential site). As aresult, some of it was stolen, while some died. Sombrely, he asked,‘Manje ngiphile ngani?’ (Now, howmust I survive?). The silence in the room continued. At this point,I looked down to wipe a tear away. It was the old man's sadness andhis tone of disappointment that choked my voice as I asked follow-upquestions. My emotions completely disregarded an unspoken rule thatan ethical and objective researcher should not display her feelingsand that crying during interviews is an offence. I became worriedthat the participants may, from that point onwards, select what theydisclosed to me, considering my expression of empathy. However, theycontinued to share their experiences as if it was therapeutic.

The men and women of multiple generations who sat in the intervieware part of the 120 families who were relocated from neighbouringfarms in Ogies, located south-west of eMalahleni (formerly Witbank),by what was then called Xstrata PLC, for the TweefonteinOptimisation open-cast mining project.

In contrast to private farmland, where the land is exchanged betweenfarm owners and the mining companies, chiefs in mined rural land areagents of dispossession. Somkhele is one of many mining-affectedcommunities in which mining rights and compensation were concludedwith the facilitation of traditional leaders, who are notorious forentering into agreements with multinational corporations in theextractive industry without the full consent of theirconstituencies. For example, a court record in which Tendele CoalMining (Pty) Ltd (Tendele) sought to force resisting families torelocate in 2021 illustrates that the Mpukunyoni Traditional Counciland the Mpukunyoni Traditional Authority, under the late ChiefMkhwanazi, which is comprised of 30 headmen, representing 30villages, signed the relocations protocol before the beginning ofthe relocations in Somkhele. Families were, thereafter, informedabout the relocations as a mere bureaucratic exercise. What, then,is the role of traditional authorities after 1994 if they do notrepresent and safeguard the interests of their followers? Is thechief still chief of the people? This chapter describes themechanisms of dispossession on tribal land in KwaZulu-Natalprovince. As in chapter 2, it illustrates that communities on triballand were inadequately consulted, promised jobs and development andthat contracts after phase 1 mining were used performatively oncemore as a tick-box exercise. In reality, these were poorly draftedand did not address the intangible aspects of loss in an event ofdispossession.

Traditional leaders enjoy being positioned at the centre of localeconomies because of their historical role as administrators of theland. This role was solidified by colonial laws such as the NativeAdministration Act 38 of 1927 and the Native Trust and Land Act 18of 1936. Moreover, tribal trust property, ‘a form of propertyownership in which land was historically purchased by Africansthrough a variety of routes, and subsequently registered to a stateofficial “in trust” for a recognised “chief and his tribe”, in termsof the distinctive property laws that emerged in the colonialTransvaal during the late nineteenth and early twentieth centuries’,also bestowed chiefs with land administrative powers. However,after1994, no legislative framework has directly articulated theland administrative powers of traditional leaders. In cases wherethe state made attempts to do so, rural communities, civil societyand academics have challenged this.

I have argued that dispossession is a continuous experience forcommunities who live in mined areas and that it includes theexperience of the living and the treatment of the remains of thosewho have passed. Thinking about dispossession in relation to boththe living and the deceased reminds me of Sol T. Plaatje's Native Life in South Africa, in which herecounts the Natives Land Act 27 of 1913, how the law revokednatives’ citizenship and, in the end, made them pariahs, with noproperty or even a place to bury their deceased. His work isimportant in tying together questions of land, nativeness,spirituality and belonging. Therefore, if we apply the same lens heused to analyse South Africa, a pertinent question arises: how arethe descendants of native Africans now citizens, without access tothe land and a place to rest? And what compels us to raise questionsabout landownership, belonging, heritage, land and cultural rights,dehumanisation and exclusion 30 years after South Africa'sdemocracy?

Gaps in the legislation that have been discussed – such as theMineral and Petroleum Resources Development Act 28 of 2002 (MPRDA),the Interim Protection of Informal Land Rights Act 31 of 1996(IPILRA) and the National Heritage Resources Act 25 of 1999 (NHRA) –rob communities of their rights to access the land and places ofburial and allow the dispossession and dehumanisation of Africancommunities within the parameters of the law. This is lawfulexclusion. Lawful exclusion is, therefore, posited as the means bywhich African communities in mined areas are continuouslymarginalised through ‘reformed laws’ of the current democraticdispensation. The precise workings of lawful exclusion have beenexplicated in detail in the analysis presented around the processesof household and grave relocations wherein, notably, a cleardisregard of the provisions in the mineral, land and heritage laws,and gaps in the legislation, deny communities their rights.

In addition, the laws are also shown to intersect in ways that arecontradictory, operating within an overriding market-drivenrationale and, therefore, failing to attain their objectives toprotect ‘previously marginalised communities’.

Loss of land and the relocation of homes and black African ancestralgraves are prevalent in South Africa. The dispossession ofcommunities for coal mining is accelerated by South Africa'sdependence on fossil fuels for energy production. Coal extraction,burning and dependence remains high despite South Africa havingsigned the Paris Agreement in 2015 to reduce carbon emissions. Asthe country gears itself to decarbonise, mining corporationsscramble for mining rights to dig the abundant coal deposits in theprovinces of Mpumalanga, KwaZulu-Natal and Limpopo, threateninglocal communities’ land, heritage and constitutional rights in theprocess.

At this juncture, mining corporations, which exploit gaps in SouthAfrica's heritage, mineral and land rights laws, convey tocommunities that spiritual connections to land and to theirancestors will not keep the country's lights on and will not help togrow the economy. These capitalist-driven corporations, backed bythe state, therefore force impoverished communities to give up theirland for the sake of development. They make promises to localcommunities that the areas and their livelihoods will improveeconomically. However, the true beneficiaries, economically, are themining companies. As a result, coal is South Africa's paradox. Inthis book, I attempt to deepen the understanding of loss incoal-mined areas as South Africa finds itself in a coal energycrisis and, despite the states’ commitment to decarbonise,communities still find themselves displaced and detached from theirancestral lands and graves.

The meaning of land

No Last Place to Rest partly draws frommy doctoral study, which explored the contestations over gravesiteremovals by Glencore PLC for thermal coal on the Tweefontein farm,located in the east of the town Ogies in the Mpumalanga province(for a map of the area, see figure 2.1).

In 2013, I monitored the Restitution of Land Rights Amendment Billfor the Land and Accountability Research Centre, then a part of theCentre for Law and Society at the University of Cape Town, and Ibecame curious about land and ancestral graves and theirsignificance to communities.

South Africa's market-friendly mineral law overrides the protectionof informal land rights and heritage rights, leading to new forms ofexclusion and injustice in the post-apartheid era. Prior to 1994,access to minerals was intrinsically bound to landownership,following Roman-Dutch private property law, which formed the basisof South African mineral law. This arrangement, however, was amendedthrough the promulgation of the Mineral and Petroleum ResourcesDevelopment Act 28 of 2002 (MPRDA). This law transferred thecountry's mineral resources to the state, a quasi-nationalisation.As the custodian, the state acquired the responsibility to grant,issue or terminate mineral rights. In other words, after 1994, therewas a paradigm shift towards state-authorised privatisation,masquerading as nationalisation, but the reality was that the statesought to encourage the private exploitation of minerals. As aresult, mineral law in a market-driven economy has come to trumpland rights and the protection of heritage – with mining eliminatingall other possible land uses. This is explored in detail in the nextchapter.

Understanding mineral law and its historical development in SouthAfrica is important insofar as it illustrates how power isdistributed, through the MPRDA, away from the state to privatecompanies, reducing the state's role in resolving disputes andcreating procedural anomalies that limit the impact of otherlegislation. Consequently, in a country with an unfinished landreform project such as South Africa, communities who were oncedispossessed continue to experience injustices.

Mineral rights in Roman law and Roman-Dutch law

Ownership of land under Roman and Roman-Dutch law was regarded asalmost absolute and unencumbered. Some minerals were regarded asfruits of the land and could only be separated by the owner. TheRoman-Dutch law system lacked legislation regarding mineral rightsand, as a result, Roman-Dutch jurists followed Roman law andaccepted the principle that the owner of land is the owner ofeverything built upon the land and everything below the surface. Theidea of mineral rights as separate real rights developed during theMiddle Ages.