MAX Mind Investments may have taken advantage of the Tagarira and Mukwasi villagers’ ignorance of the law to evict 40 families from their ancestral lands without adequate compensation.
OWEN GAGARE
This is the conclusion of an environmental lawyer and community-based organisations. The relocated families, particularly those who were placed in the town of Murambinda, are struggling to adapt to an urban environment.
The families say they signed compensation agreements under duress, after being told by government officials and Chief Nyashanu that they had no choice but to move since the investment had the government’s seal of approval.
Buhera district development coordinator Freeman Mavhisa, the most senior civil servant in the district, denies this. Obert Bore is a project officer with the Zimbabwe Environmental Lawyers’ Association and a Sylvester Stein Fellow.
He told The NewsHawks that there was a chance that villagers could successfully challenge their relocation if they could prove that they were coerced.
However, he cautioned that the evicted villagers are in a weak position because they signed a compensation agreement with the company, which is currently mining lithium where they were previously located. Max Mind registered the agreement with Zimbabwe’s Adminstrative Court to give effect to the relocations.
“The mining company had at its disposal lawyers who drafted the agreement, whilst the community had to rely on the goodwill of the company to get a fair settlement. Some of the community members expressed sentiments that they would have wanted US$2 500 as compensation, but because they were not aware that section 80 of the Mines Act allows them to take the matter to the Administrative Court after failing to reach an agreement, they accepted what the company offered them,” Bore said.
“It was clear that Max Mind Investments took advantage of the community’s ignorance and lack of knowledge of the law. Had the community sought legal opinion and representation from public interest organisations during the negotiation, they would have been able to demand compensation commensurate to the loss of their property and the future loss of their source of livelihoods.”
Bore said the community could challenge the relocation if they could prove that they were unduly influenced, among other reasons.
“The major challenge is that the community had already signed the compensation agreement, which was unfair. To challenge a contract/agreement, the community will have to prove lack of capacity, coercion, undue influence, misrepresentation and nondisclosure, unconscionability, and a public policy mistake,” Bore said.
“In this case, the community members could challenge the compensation agreements on the basis that they were coerced and unduly influenced to sign the agreements against their wishes. Evidence would need to be proffered for the court to ascertain whether indeed there was coercion.
“The community members entered into an agreement with Max Mind Investments which stipulated that once the new houses constructed by the company mine had been completed, they would have to vacate their old homes immediately, failing which the Company would order the Sheriff to relocate them.”
Bore said there was also a loophole that could be exploited by the community.
“Clause 6 of the compensation agreement stipulates that if there is any inconsistency between the provisions of the Mines and Minerals Act [Chapter 21:05] and the terms of the agreement, the terms of the agreement will prevail. The effect of the clause is that if there is a dispute regarding statutory provisions within the Mines and Minerals Act as they may apply to the compensation agreement, the agreement between the parties would supersede the act.
“In principle, parties agreed to circumvent the law. A dispute could arise from any clause in the agreement. Such a clause could be inconsistent with the Mines and Minerals Act. If challenged in court, an argument could be made to declare the agreement voidable and unenforceable on the basis that parties cannot agree to circumvent a law of general application.
“In this regard, the ex turpi causa non oritur actio rule would be applicable. This rule means no action can arise from a disgraceful or dishonourable cause, and an illegal contract is void and unenforceable.”
Bore gave the example of RCM Civil (Private) Limited v Petrotrade (Private) Limited, whereby parties agreed to proceed with a project after the Environmental Management Agency had stopped the project for failure to comply with section 97 of the Environmental Management Act [Chapter 20:27].
“In that case, the court held that the agreement between the parties to move to the site before the issuance of the EIA (environmental impact assessment) certificate was illegal, and parties were in pari delicto (equally at fault). It was then held that courts will not enforce an illegal agreement,” he said.
“Following the precedent set by Jajbhay versus Cassim, the court expressed that the rule is absolute, and the purpose of this rule is to discourage illegal agreements. Furthermore, the remarks of the South African Appellate Division in Sasfin (Pty) Ltd v Beukes are apposite. It was stated that: ‘Agreements which are clearly inimical to the interests of the community, whether they are contrary to law or morality, or run counter to social or economic expedience, will accordingly, on the grounds of public policy, not be enforced’,” Bore said.
Relocated persons, especially those at Murambinda, are struggling to adjust to living in an urban environment, where they have to buy food and pay for electricity, among other things. The majority were surviving on farming in their former home setup.
They had large fields and gardens as well as domestic animals to ensure that they were food secure. Bore said the interests of the community members could have been better taken care of by ensuring that there was no disruption of their livelihoods.
“The community should have been given land for farming so that they could continue to sustain their livelihoods. Community members could have been prioritised for employment at the company. In addition, the company should have started projects for community members to sustain themselves,” Bore said.
“Those who had their family graves exhumed should get psycho-social support for the traumatic experience they had to undergo.” Bore also said the community was disadvantaged in that members were not given title deeds for the houses. In the absence of title deeds, it is not clear if they have total ownership of the homes.
“The lack of title deeds for houses allocated to relocated families at Murambinda Growth Point exposes them to evictions in the future in the event that government or the company decides to remove them. This is comparable to the situation in Arda Transau, where families relocated by diamond-mining companies in Marange do not have title over the houses built for them close to Mutare city by the diamond-mining companies,” he said.
Bore said the government should put in place a framework for relocation and compensation to ensure that such problems do not recur.
“As a result of the lack of a framework, there is no uniformity in relocations that are done to pave the way for development. A framework on relocation is vital to ensure that communities’ rights and interests are adequately safeguarded, and to ensure that the process is inclusive and consultative for all stakeholders to negotiate before any relocations can be effected.”
Emmanuel Mauya from the group Community Innovations for Development, which operates in Buhera South, said the government should rescue the families who were relocated to Murambinda by addressing their numerous concerns. He said the majority were living in poverty because of the disruption to their livelihoods.
“Their livelihoods have been compromised. They were given houses, but this is not a benefit at all because they had homes in the village. The money they were given is not enough to sustain them for a lifetime. They are now very vulnerable because their livelihoods were affected,” Mauya said.
“Before eviction, they were farming, practising artisanal mining and doing other projects such as basket weaving, which they can’t do now. One of the affected persons was a well-known herbalist who sustained her family through her work, but at Murambinda, she does not have access to the herbs.
“So, the government needs to go back to the drawing board and see how the people can be empowered. Government must call all stakeholders, including traditional leaders, community leaders, political leaders, civil society and residents’ associations, to a meeting. Binding resolutions must be made, with timeframes for actioning, so that the people are assisted,” he said.
Mauya said Max Mind should address concerns raised by the evicted community and neighbouring villagers.
These include concerns over dust emanating from the company’s mining operations. He said the company should ensure that the community receives title deeds while also addressing concerns about reduced stand sizes, which contravene the compensation agreement.
Buhera Residents Trust Network director Leonard Mabasa said the concerns raised by the community are genuine and should be addressed.
“It’s not too late to revisit the compensation agreement from a human rights point of view. There are families who are overcrowded because some married children did not get houses of their own. That should be addressed,” he said.
“Safety nets are necessary because most families are suffering. The company must honour all the agreements it made with the villagers, whether verbally or written. They must drill boreholes for each of the families as pledged. They must employ affected persons and address public health concerns as a result of dust and the chemicals being used at the mine.”
