3
School of Government, UWC
Research
Report
Bakwena ba Mare a Phogole (Klipgat) 
Community Restitution Claim
COMMISSION
ON RESTITUTION
OF LAND RIGHTS
Department of 
Land Affairs
Belgische Technische Co?peratie nv
Coop?ration Technique Belge sa
Susan Tilley and Ntombizabantu Nkazane
Bakwena ba Mare a Phogole (Klipgat) Community Restitution Claim
Susan Tilley and Ntombizabantu Nkazane
Published by the Programme for Land and Agrarian Studies, School of Government,
University of the Western Cape, Private Bag X17, Bellville 7535, Cape Town, South Africa.
Tel: +27 21 959 3733. Fax: +27 21 959 3732. E-mail: plaas@uwc.ac.za
Website: www.plaas.org.za
In collaboration with Department of Land Affairs, Commission on Restitution of Land Rights 
and Belgische Technische Co?peratie (BTC)
Programme for Land and Agrarian Studies research report no. 28
ISBN: 978-1-86808-673-3
August 2007
All rights reserved. No part of this publication may be reproduced or transmitted, in any form
or by any means, without prior permission from the publisher or the authors.
Copy editor: Roelien Theron
Cover photograph: PLAAS
Layout: Designs4development, info@d4d.co.za
Typeset in Frutiger linotype
Printing: RNK Graphics
Cartographer: John Hall
Bakwena ba Mare a Phogole (Klipgat) 
Community Restitution Claim
Susan Tilley and Ntombizabantu Nkazane
Research
Report
This document forms part of a series of reports researched and written by the Sustainable 
Development Consortium, led by Phuhlisani Solutions, on behalf of the Commission on Restitution 
of Land Rights and Belgian Technical Cooperation.
Bakwena ba Mare a Phogole (Klipgat) Community Restitution Claim
i
Table of contents
Acronyms ii
Executive summary  iii
Key features of the Klipgat restoration iv
1. Property description ? location, physical features and basic services 1
Location 1
Extent of land area 1
Environmental issues 1
Basic services 3
2. History of ownership, dispossession and changes in land use 4
3. Claim lodgement, veri?cation of members, negotiations and settlement process 5
Claim lodgement 5
Validation and the gazetting of the claim 5
Veri?cation of members  5
Negotiations 5
Purchase and transfer 6
Community pro?le 6
Legal entity, ownership and membership 6
The terms and implementation of the Settlement Agreement 9
4. Post-settlement developments and associated support provision 10
Assets 10
Business plan and land-use plan 10
Mining operations 11
Agriculture and other developmental activities 14
Proposed activities 14
Sources of support 15
5. Conclusions and strategic issues for consideration 18
6. Source documents 20
Primary sources 20
Secondary sources 21
7. Key informants and contact details 22
8. Appendix 23
Bakwena ba Mare a Phogole (Klipgat) Community Restitution Claim
ii
Acronyms
ABET Adult Basic Education and Training
ARC  Agricultural Research Centre
ARDF  Agricultural Rural Development Finance 
CASP  Comprehensive Agricultural Support Programme 
CLCC Chief Land Claims Commissioner
CPA  Communal Property Association
CRLR Commission on the Restitution of Land Rights
DLA  Department of Land Affairs
DoH  Department of Housing
DME  Department of Minerals and Energy
DoA  Department of Agriculture
LRC  Legal Resources Centre
NGO  Non-governmental Organisation
RDG  Restitution Discretionary Grant
RLCC  Regional Land Claims Commission
Section 42D Section 42D of the Restitution of Land Rights Act 22 of 1994, as amended 
SDC   Sustainable Development Consortium 
SP  Strategic Partner
SPG  Settlement Planning Grant
Bakwena ba Mare a Phogole (Klipgat) Community Restitution Claim
iii
? a brick-making project that has supplied bricks to 
local housing projects and has the potential to make 
suf?cient bricks for the proposed housing project on 
the farm.
The study concludes with an analysis of critical strategic 
issues, as follows: 
? The de?nition of membership is unclear.
? Tensions within the communal property association 
(CPA) are threatening to undermine the progress made 
by the community.
? Protracted discussions and planning regarding 
development activities have taken place. However, 
these have not been followed through with direct 
action or implementation, partially as a result of 
the community becoming immobilised by ongoing 
internal tensions and a lack of resolution about the 
way forward, and partially due to a lack of support from 
the Regional Land Claims Commission (RLCC) in the 
form of grants as well as technical and organisational 
support. 
? The community remains unclear about whether 
projects that are established on the farm are to be 
viewed as communal projects or as the property of 
individuals. 
? Ownership rights and subsidies regarding housing 
settlement on communal land require further 
investigation. 
? The relationship between the mining company, which 
has mineral rights on the community?s land, and the 
CPA remains an unequal one. In addition, the terms and 
conditions of the agreement between the two parties 
are not well de?ned or understood by the community. 
The community is unable to quantify the potential 
bene?ts that might accrue from their valuable asset.
This diagnostic study examines the case of the restoration 
of the remaining extent of the farm Klipgat 18 IQ, falling 
under the Ventersdorp Local Municipality in the North West 
province, to the Bakwena ba Mare Phogole community 
in July 2000. The restored land of the Klipgat farm is 
approximately 873 ha in extent.
This report outlines the community?s attempts to develop 
and use the land that has been restored to it in terms of the 
Restitution of Land Rights Act 22 of 1994 (?Restitution Act?). 
It examines the nature and content of the post-settlement 
support received and draws lessons from the community?s 
experience that might inform the development of a strategy 
for post-settlement support provision by land reform 
institutions and associated agencies. 
At the outset, the report describes the location and physical 
features of the restored land, the history of ownership 
and dispossession, and the changes in land use that took 
place in the post-dispossession period. The process of the 
claim lodgement, veri?cation, negotiations and settlement 
are then traced. The developments and support provided 
during the post-settlement phase are examined in some 
detail. 
Current activities taking place on the land include:
? a lease agreement with a mining company, Etruscan, 
for the extraction of alluvial diamonds
? a piggery that supplies local markets with pork
? grazing of 20 cattle and 6 sheep owned by community 
members
? an arts and crafts project established by a group of 
?ve women who are making beaded necklaces and 
earrings
Executive summary 
Bakwena ba Mare a Phogole (Klipgat) Community Restitution Claim
iv
Province North West
Date claim lodged 9 July 1996
Date settled (Section 42D) 2 April 2001
Total settlement amount R 1,820, 000 (R1.8 million)
Size of land awarded 873 ha
Type of legal entity Communal property association (CPA)
Number of members Approximately 500 
Developmental activities ? A piggery has been developed and is operational.
? The CPA receives R6,000 per month from a diamond mining 
company  as rental and  is supposed to receive interest on its 
equity share in the mining business. 
? A brick-making project has been started.  
? A group of women have established a bead-making project.
Key features of the Klipgat 
restoration
Bakwena ba Mare a Phogole (Klipgat) Community Restitution Claim
1
1. Property description ? 
location, physical features and 
basic services
The remaining extent of the farm Klipgat 18 IQ, in the North 
West province under the jurisdiction of the Ventersdorp 
Local Municipality, was restored to the Bakwena ba Mare 
Phogole community in July 2000.
Location
The farm Klipgat 18 IQ is located north west of the town 
of Ventersdorp in the Rustenburg district of the North West 
province.
Extent of land area
There is a discrepancy across various documents in the 
recording of the precise extent of the restored land. The 
valuation report (CA Young Valuations 1999) states that the 
land area is 872.9161 ha in extent. This is in agreement with 
the title deed. However, the extent of the land transferred 
to the CPA, as re?ected in the Memorandum: Mandate to 
Negotiate (2000) and the Agreement of Sale (2001), is 
872.8060 ha. The Department of Land Affairs (DLA)  research 
report on Klipgat No. 18 IQ states that the land area is 
872.8138 ha.
The community has indicated that a number of their 
ancestors? graves are located outside the periphery of 
the farm boundary and that they are not clear why the 
boundary of the restored land excludes these burial sites. 
The business plan indicates that the cemetery is located 
on Erf 85 (Business Plan 2004). The discrepancy in the land 
areas as re?ected in different documents may account for 
the difference of approximately 1,000 m
2
, which area could 
represent the burial area that lies beyond the perimeter 
fence. The boundaries of the farm have either not been 
clearly demarcated or the entire extent of the claimed land 
has not been restored to the community, although the area 
in question is relatively small.
Rainfall, climatic conditions and topography
The area has warm summers and cold winters with frost 
during the winter months. The summer rainfall is between 
500 mm and 550 mm per year (CA Young Valuations 1999).
The farm has undulating grazing lands with soil consisting 
of sandy loam which is fairly stony. The farm consists of 
120 ha of dry land; 98 ha of Smuts?nger and erigrostos 
pastures and 654 ha of stony sour grass grazing (CA Young 
Valuations 1999).
According to the business plan (2004), previous surveys 
indicated that the soil of the farm is of the Msinga soil 
series and varies from shallow or stony areas to medium 
textured and freely drained areas. The dominant soil types 
are Rensburg and Katspruit, which are not high potential 
agricultural soils but can be utilised for cropping if well 
managed.
The area is known for cattle farming as well as dryland 
cropping with the cultivation of grain, sorghum, maize and 
pastures being common. The carrying capacity of the land 
is estimated at 6 ha per large livestock unit. 
There is a diamond digging on the property that covers 
approximately 100 ha, on the eastern boundary. 
Water supply
There are seven boreholes on the property but only three 
are functioning. One of the boreholes has the capacity to 
pump approximately 10,000 litres of water per hour (CA 
Young Valuations 1999).
The Mooi River runs through the property and the farm is 
part of the Groot Marico irrigation scheme. 
The diamond diggings on the property draw a high volume 
of the farm?s underground water.
Environmental issues
No environmental impact assessment was done prior to the 
settlement of the claim. 
According to the business plan (2004), the following 
environmental issues need to be taken into consideration:
? The mining activities should be monitored and 
rehabilitation should be done during all stages of the 
mining.
? The bloekom (eucalyptus) trees are alien plants that 
consume large quantities of water. It is recommended 
that these trees should be removed.
Bakwena ba Mare a Phogole (Klipgat) Community Restitution Claim
2
Map 1. The boundaries of Klipgat 18 IQ
Bakwena ba Mare a Phogole (Klipgat) Community Restitution Claim
3
? It seems that there are no longer any endangered 
animal species on the farm.
? The cemetery on Erf 85 should be included in the 
layout plan.
? A new village should be planned according to 
appropriate standards. Special detail should be given 
to the following:
? sewerage
? water quality for consumption
? waste disposal.
Basic services
All major services are available in Ventersdorp, Rustenburg 
and Carletonville, each of which is approximately 45 km 
from the farm. The road to Boons runs through the property 
and serves as a transport link for community members. 
Bakwena ba Mare a Phogole (Klipgat) Community Restitution Claim
4
In 1913, 14 black families bought the farm Klipgat for 
?1,783. The community held the land in undivided shares 
under title deed 7241/1913. The 14 families were originally 
sharecroppers in the Vereeniging area and when they 
became aware of the looming promulgation of the Natives 
Land Act 27 of 1913 (which had the effect of rendering 
sharecropping unlawful and prohibiting further purchases 
of white-owned land by black people) they purchased and 
moved to the farm Klipgat, on the advice of their attorney 
Pixley ka Seme. According to the deed of transfer, the power 
of attorney authorising the transfer of Klipgat was signed 
on 6 May 1913, six weeks prior to the passing of the Natives 
Land Act on 20 June 1913. 
The14 owners and their families lived on and worked the 
land, cultivating dry land crops and grazing livestock.
Diamonds were later found on the farm and the community 
entered into a contract with a white miner and shared in the 
pro?ts of the mining operation. According to a descendant 
of Nape, one of the original owners, ?Africans were not 
allowed to sell or own minerals and so they gave the surface 
and mineral rights concession to a white prospector and 
later sold their rights to him.?
1
 
The income from agricultural production and the mining 
operations meant that most community members did not 
have to leave the farm in search of employment. At least half 
of the farm is arable and was highly fertile and productive 
prior to dispossession; the community was said to be self-
suf?cient in terms of maize and other food, and substantial 
surplus produce was sold on various markets. The farm had 
a school and all community children received a rudimentary 
education, while others went on to tertiary education and 
became professionals. 
During the 1960s, the owners of Klipgat received a letter 
informing them that only white people were allowed to 
occupy land in the area. When the community was ?rst 
threatened with removals, they formed an anti-removal 
committee and obtained assistance from an attorney to act 
on their behalf. 
The land was eventually expropriated by the apartheid 
government in terms of Section 13(2) of the Native Trust and 
Land Act, 18 of 1936. The forced removal of the residents 
took place over a fourteen-year period from 1961 to 1975. 
The ?rst group of people were forcibly moved to the farm 
Uitkyk in 1961 and were accommodated in military tents. 
Other members of the community were scattered and 
went to Ledig, Modikwe, Ramathlabana, Mathopestad, 
Johannesburg and other areas on the Reef. In some cases, 
members of the same family were separated and family 
life was disrupted. The community?s traditional support 
structures were destroyed and many people were reduced 
to poverty.
The pressure on the remaining members of the community 
to move was intensi?ed and some members agreed to 
move to the Groot Marico while others continued to resist. 
Various agents tried to divide the community and police 
raided the farm and arrested and detained members. One 
of the founder members, David Thekiso, was arrested and 
died in detention at the Bougroep prison in Potchefstroom. 
In 1975, Jacob and Elisa Thekiso and their families were the 
last members of the community to be forcibly removed. 
They were dumped in Brits and their livestock was left at 
Klipgat and not returned to them.
The state expropriated the farm in terms of the provisions of 
the Expropriation Act 63 of 1975. A Mr Momberg applied to 
purchase the farm and bought it on 30 June 1976 from the 
Departement Landboukrediet en Grondbesit [Department 
of Agricultural Credit and Land Ownership] for R52,500; A 
bond was registered against the property.
Mr Momberg used the land for grazing cattle, cultivating 
maize and other dryland crops and entered into a contract 
with a mining company to undertake diamond prospecting 
and mining in the eastern section of the farm. 
2. History of ownership, 
dispossession and changes in 
land use
1 
Interview: J. Nape, June 2006.
Bakwena ba Mare a Phogole (Klipgat) Community Restitution Claim
5
3. Claim lodgement, verification 
of members, negotiations and 
settlement process 
Claim lodgement
The claimant of the farm Klipgat is the community made 
up of the descendants of the 14 original co-owners of the 
farm. This grouping of descendants regard themselves 
as the Bakwena ba Mare a Phogole community. Having 
heard that they could claim their land under the restitution 
programme, a group of community members contacted 
other members via word of mouth, radio and print media. 
A series of meetings was called to discuss the possibility 
of claiming the land. It took the group a number of years 
to trace all members of the community and to ?nalise the 
claim for lodgement, which was done with the assistance 
of the Legal Resources Centre (LRC). The claim was lodged 
on 9 July 1996 and was viewed by the Commission for 
the Restitution of Land Rights (CRLR) as complying with 
the provisions of Section 10(1) of the Restitution Act, as 
amended.
Validation and the gazetting of 
the claim
The claim was gazetted in terms of notice 2727 of 1998 
(Government Gazette, 13 November 1998). 
Verification of members 
In 1998, the Regional Land Claims Commission (RLCC) 
Research Unit and members of the claimant committee 
held various meetings and embarked upon an exercise 
to clarify who they understood to be members of the 
claimant community. This was undertaken prior to the 
adoption of the CPA?s constitution, which details eligibility 
for membership, and which was adopted in April 2001. 
However, in September 2002, the RLCC indicated that it was 
still going to appoint a service provider to conduct a further 
veri?cation process.
2
  According to community respondents, 
there are 500 members in the claimant group but there are 
still differences of opinion regarding how membership is 
de?ned and who exactly the members are.
3
2
 Correspondence: RLCC to LRC, 19 September 2002.
3
  Interview: CPA interim committee members and community residents on Klipgat farm, July 2006.
4
  Memorandum: Submission in terms of Section 42D,  April 2001.
5  
Memorandum: Submission in terms of Section 42D,  April 2001.
6
  Correspondence: RLCC to LRC, 19 September 2002.
             
Negotiations
On 2 April 2001, the Minister for Agriculture and Land 
Affairs approved the request for a mandate to negotiate the 
purchase of Klipgat farm for the Bakwena ba Mare a Phogole 
community in terms of the Restitution Act.  The community 
was assisted by the LRC during the negotiations process. The 
Mandate to Negotiate outlines the status of the claimant 
community and indicates that the members are descendants 
of the 14 original owners. It speci?es the particulars of the 
claim, describes the property, states the acceptability of the 
claim, outlines the history of acquisition and dispossession 
of the rights in land being claimed, speci?es the ?nancial 
implications, and makes recommendations for approval by 
the minister. 
Financial implications
During the negotiations, the then landowner, Mr Johannes 
Christoffel Momberg, requested that the valuation price 
of R855,000 be increased to R950,000 due to the potential 
of the mining operations on the property and loss of 
potential earnings.
4
 The DLA and the RLCC agreed to pay 
this increased amount.
The DLA agreed to allocate R3,000 per household as 
Restitution Discretionary Grants (RDGs) and R1,440 per 
household as Settlement Planning Grants (SPGs). It was 
estimated then that the claimant community was made up 
of 200 households, thus bringing the total grant allocation 
to R870,000.
5
In September 2002,  the RLCC acknowledged that it had 
yet to appoint a service provider to conduct ?claimant 
veri?cation? (that is, community membership), and that 
this was delaying the disbursement of grants to the 
community as determined by what is referred to as the 
Deed of Settlement of March 2002, otherwise known as the 
Settlement Agreement.
6
Bakwena ba Mare a Phogole (Klipgat) Community Restitution Claim
6
Purchase and transfer
The agreement of sale was signed between the chairperson 
of the CPA and the landowner on 18 July 2001, and a handover 
celebration was held on 25 July 2001. The purchase date is 
recorded on the title deed as being 24 August 2001.
7
 The 
title was registered in the name of the CPA on 11 January 
2002 (Title deed, T2983/2002).
Community profile
No formal skills audit or formal pro?ling of the community 
has been undertaken to date. The capacity and quali?cations 
of the community members of Klipgat are diverse, with some 
members being professionals such as doctors and lawyers 
while others are illiterate and work as manual labourers. The 
majority of the members are unemployed. A number of the 
members have farming skills as a result of having previously 
worked on farms ? this was evident amongst workers in the 
piggery and those wishing to embark on the poultry project. 
Some of the CPA committee members are experienced in 
human resource and personnel management, while others 
have expertise in the construction industry and are playing 
a leading role in attempting to establish a housing project.
Legal entity, ownership and 
membership
Establishment of the legal entity
Several meetings were held between the claimant 
community and a representative from the DLA in order 
to decide upon an appropriate legal entity. According to 
the LRC attorney involved in assisting the community, 
establishing a legal entity was a long and dif?cult process as 
there was much disagreement within the community. This 
was compounded by resistance from some sections of the 
community to women being members.
8
The community chose a CPA as their legal landholding 
entity. The signed constitution is not dated, and there is 
a difference of opinion regarding when the community 
adopted the constitution, with some saying this was done 
in late 2000, while others indicate April 2001. There are also 
allegations that different versions of the constitution were 
adopted and/or circulated to the community.
9
 The CPA was 
registered as CPA/01/0329/A in April 2001 in terms of the 
Communal Property Associations Act 28 of 1996. 
A community committee was established in 2000 with 14 
elected members. Each member was supposed to be a direct 
descendant and representative of one of the 14 original 
owners. However, this initial committee was allegedly 
dominated by representatives from the Ngakane family, 
with all the positions in the executive held by Ngakanes. The 
term of this committee was to end in April 2004 and a new 
committee was to be elected, but for a range of reasons no 
elections were held. After a series of general meetings and 
pressure from the community, a general meeting held on 
19 June 2005 determined 3 July 2005 as the date for the 
election of a new committee. The elections were duly held 
and a new committee was elected without any objections 
being noted. It was agreed that there would be a transition 
period to allow for a proper handover from the old to the 
new committee. 
The old committee was to hand over by 16 July 2005 but 
on this date the members of the old committee indicated 
that they did not recognise the new committee. As a result, 
a crisis committee was formed and the old (that is, the 
original) committee was dissolved due to an alleged lack 
of accountability and ?nancial mismanagement. This crisis 
committee (also referred to as the Concerned Group) was 
made up of appointed members. Elections for a permanent 
executive were due to take place on 6 November 2005. For a 
range of reasons, this election did not take place. 
According to members of the crisis committee, meetings 
did not take place regularly, and there are tensions amongst 
committee members and between factions within the 
community. While a code of conduct was drafted in a bid 
to establish a mechanism to settle tensions and disputes, 
it does not appear to have led to an improvement in the 
situation. The current committee has attempted to take the 
CPA forward and holds report-back meetings for those who 
are able to attend, but it clearly does not enjoy the support 
of all community members.
10
In a bid to resolve these and related issues, a meeting was 
held between the CPA, the interim management team, 
representatives from the Moalusi and Ngakane families and 
RLCC of?cials on 25 April 2006. During the course of this 
meeting, Mr Mothibe from the RLCC of?ce acknowledged 
that a number of errors had occurred in the process of the 
land claim and that government of?cials were partially to 
blame for these problems. Examples of errors included:
7
  Correspondence: RLCC to Department of Minerals and Energy, 22 October 2001.
8
  LRC ?le notes and personal communication with Kobus Pienaar, 2006.
9
  Correspondence: Bakwena ba Mare a Phogole Crisis Committee/Concerned Group to Mr Lerato Molaudzi, undated.
10
  Interviews: Interim CPA committee members, June 2006; Correspondence from Bakwena ba Mare a Phogole Crisis Committee/Concerned Group to Ms 
Lerato Molaudzi, undated. 
Bakwena ba Mare a Phogole (Klipgat) Community Restitution Claim
7
? failure to compile the claimant veri?cation list before 
the land was handed over
? absence of plans pertaining to how the land would be 
used
? absence of research to ?nd out the needs of the 
community, their preferred development options, and 
so forth
? failure to verify the list of 200 households submitted to 
the of?ce of the RLCC
? failure to resolve the veri?cation of the status of the 
Moalusi and Ngakane familes.
11
The latter issue, as discussed in the meeting of 25 April 
2006, raises a number of important aspects about how 
membership is determined, besides the lack of a thorough 
assessment at the time of the claim being lodged. At issue 
is the transfer of land from one of the original families 
(Ngakane) to another family (Moalusi) prior to their 
dispossession. 
According to the land transfer document of 28/29 August 
1913, 14 members bought the farm, which was 1,019 
morgen (873 ha) in extent. It then lists the members. As 
these members died, their portions were re-registered in 
the names of their children or spouses. When the CPA was 
established in 2001, membership was de?ned in terms of 
descent from these 14 original purchasers. It has since come 
to light, however, that the 1/14
th
 share of one of the members, 
Mr William Ngakane, had been sold to Mr Lucas Moalusi in 
1940. Lucas Moalusi passed away in 1945 and the title deed 
was transferred to Lucy Moalusi. The expropriation orders 
of 1966 thus re?ect the name Moalusi and not Ngakane (as 
Ngakane had already sold out). This would seem to indicate 
that the Moalusi family is eligible for 1/14
th
 share of Klipgat, 
and the Ngakane family is not (as they were not forcibly 
dispossessed), but this contradicts the CPA constitution 
which explicitly refers to the 14 original purchasers and 
makes no reference to subsequent owners. 
The fact that this matter was not clari?ed at the outset is 
causing a great deal of tension within the community and 
has contributed to the CPA becoming dysfunctional.
Membership 
Clause 8.1 of the constitution indicates that members of the 
association are the families and direct descendants of those 
persons listed in a schedule as an annexure attached to the 
constitution. Each person listed in the schedule represents 
one family and hence one member of the association. 
Clause 8.3 further notes that applications for membership 
by families other than those listed in the schedule shall be 
made to the committee which shall submit such applications 
to a general meeting of the CPA which shall decide whether 
to accept or reject an applicant. 
As indicated above, there is a great deal of uncertainty 
about who is a member and how membership is de?ned. 
The problem is compounded by the fact that the term 
?member? is used interchangeably to denote the original 14 
families and the members of the broader (contemporary) 
community.
Rights and duties of members
The CPA gives members the right to utilise the land for 
farming.  The members agreed to be guided by principles 
of fairness and equity in their allocation of grazing and 
cultivation rights.  The wealthier members of the community 
were at ?rst unhappy with this arrangement because they 
believed that the poorer members would hold back the 
development of the land.  After much negotiation, the 
community set aside its differences to work together for the 
common good of the community.
12
  
The following selections taken from the CPA constitution 
state the rights and duties of members:
? Every member shall have the right to make improvements 
upon plots of land allocated to it; such right is subject 
to the obligation of that member, to maintain such 
improvements. (Clause 9.1)
? Every member shall have the right of access to the land 
and other communal facilities and amenities. Included 
in the aforementioned, is the right of access to the 
land for grazing and cultivation purposes, gathering 
of ?rewood or thatching grass, fetching of water and 
access to other assets, resources and projects of the 
Association. (Clause 9.2)
The procedures for acquiring these rights are dealt 
with in Clause 20 of the constitution which outlines the 
registration and allotment of sites, stating that general 
meetings may allocate plots by a simple majority vote to 
members for their exclusive use. The committee may also 
make recommendations to the general meetings of the 
association on the allocation of plots to members. The 
11
 Minutes of meeting dated 25 April 2006.
12
 LRC ?le notes and personal communication with Kobus Pienaar, 2006.
Bakwena ba Mare a Phogole (Klipgat) Community Restitution Claim
8
committee is required to maintain a register of every family 
which is a member of the association, as well as details of 
sites allocated to them. A member may be deleted from this 
register by the committee in the event of his of her death, 
on the request of a member or on expulsion from the CPA.
Section 20 of the constitution also provides details of 
entitlements. Clause 20.8 states that:
Any member to whom a site has been allocated on the 
land and which has been duly recorded in the register 
shall be entitled to the undisturbed use and bene?t 
of the site, subject to the terms and conditions of this 
Constitution. 
Clause 20.9 further states that:
The remainder of the land not allocated in terms of this 
paragraph shall be utilised for the use and bene?t of 
the members as a whole in accordance with the rules 
as determined by the Association in general meeting 
referred to in paragraph 9.2.  
While the right to use and access land is enshrined in the 
CPA constitution, the CPA has yet to develop a land-use 
plan or business plan that could be of practical use to the 
community. In the absence of such plans, the potential 
exists for land to be allocated in an ad hoc manner and 
not in accordance with the most appropriate use of the 
available land areas. To date, the CPA has identi?ed an area 
of the farm where housing will be built but plots have not 
yet been demarcated or allocated to speci?c members.
Representation of community members in general meetings 
is set out in Section 9 of the CPA constitution. Clause 9.3 
states that:
All rights of the members shall be exercised subject to 
the rules as determined by the Association in general 
meeting from time to time. Any such rules may be 
amended or rescinded by the Association in general 
meeting.
According to Clause 9.5:
At general meetings each member
13
 shall be 
represented by both a male and female person who 
is part of such member and not less than eighteen 
years of age elected by a majority of vote of such 
persons being part of the members who are not less 
than eighteen years of age. Provided that a member 
may be represented by a single male or female person 
only where such member does not have as a part of it a 
person of the other sex of not less than eighteen years 
of age; provided further that if a member has a person 
as part of it recognised by law as its head such person 
(not being less than eighteen years of age) and his or 
her spouse (not being less than eighteen years of age) 
or senior spouse (not being less than eighteen years of 
age) in the case of a polygynous or polygamous union, 
shall represent such member; provided further that 
should such head and/or his or her spouse and/or his 
or her senior spouse (as the case may be) not exist, a 
person of the same gender as such non-existent spouse 
not less than the age of eighteen years being part of 
such member shall represent the member and if there 
is more than one person of such gender being part of 
a members the identity of such representative shall be 
decided by a majority vote of all such persons being 
part of the members who are not less than eighteen 
years of age; provided further that if a member can 
be represented by one person only such person shall 
have two votes. Representatives shall have the right to 
vote on any issue independently of each other. Every 
representative of a member shall have the right to 
vote at a general meeting of members in person or by 
proxy.
Clause 9.5 is confusing on numerous levels, and it is 
not surprising that the community members who were 
interviewed were unclear as to its meaning and how 
membership was de?ned. Particularly confusing is the fact 
that the constitution uses the term ?member? to describe the 
descendants of the previous owners.
Clauses 9.6 to 9.8 make provision for the payment of monies 
to the CPA. Clause 9.6 states: 
Every member shall be obliged to pay its share of 
any ?nancial commitments of the Association as 
determined by the Association in general meeting.
Clause 9.7 states: 
Every member shall be obliged to pay any levy lawfully 
imposed on it by the Association in general meeting.
This is further stated in Clause 9.8: 
Every member shall be obliged to make contributions 
towards the maintenance of the land for the common 
good.
The above three clauses address the issue of payments 
being made by members to the CPA. The CPA has the 
13
 For the word ?member?, read ?families and direct descendants of those persons listed in a schedule as an annexure attached to the Constitution? as de?ned 
in Clause 8.1.
Bakwena ba Mare a Phogole (Klipgat) Community Restitution Claim
9
power to determine an annual membership fee in a general 
meeting. Each member has to pay this fee to the treasurer of 
the committee by the end of February each year. 
Clause 9.10 deals with succession of members: 
Every member shall maintain its standing as a member 
in the event of the death of any such person who in 
part constitutes such member. Any future descendent 
or future spouse of a person who constitutes a member 
shall become and be regarded as such member for 
the purposes of this communal property association 
unless such person voluntarily relinquishes the bene?ts 
of such membership.
Clause 9.11 states: 
A member wishing to relinquish the bene?ts and 
rights accruing to it by virtue of this constitution, or 
whose membership of the Association is terminated 
in accordance with this constitution, may dispose 
of its bene?ts and rights to a purchaser of its choice, 
provided that such purchase has been admitted or 
will be admitted as a members with the consent of the 
Association in general meeting, and provided that the 
terms of the sale are disclosed to the Association, and 
the Association in general meeting consent to such 
sale.
Having spelt out the powers and the duties of members, 
the constitution also allows for a process by which matters 
can be raised and resolved within the sub-structures of the 
CPA.  In the event that it is not able to resolve differences 
or disputes, the CPA can request the intervention of the 
Director-General of the DLA to assist in resolving disputes 
(Section 24 of the constitution).  
Termination of membership
Clause 10.1 states that: 
Membership of the Association may only be terminated 
on reasonable grounds by the Association in general 
meeting after the matter has been considered at a 
fair hearing by a general meeting of the members of 
the Association at which the member was given an 
opportunity to present its case in accordance mutatis 
mutandis with paragraphs 17.2 and 17.3. 
These paragraphs outline the reasons and conditions for 
the of?ce of committee members to be terminated and 
vacated and the procedure for the removal of a committee 
member.
The terms and implementation of 
the Settlement Agreement
Correspondence between the LRC and the RLCC: North West 
dated 19 September 2002 indicates that what is referred to 
in various correspondence as the ?Deed of Settlement? was 
signed in March 2002. It would seem that this document 
constitutes the Settlement Agreement. However, a copy 
of this agreement could not be traced by the RLCC, the 
DLA, the CPA committee members or the LRC. The RLCC 
project of?cer indicated that the memorandum submission 
in terms of Section 42D is the document that is used in 
the absence of the Settlement Agreement.
14
 The lack of a 
signed Settlement Agreement would seem to re?ect a lack 
of adequate management of key documents by the RLCC 
and other parties. In the event of any disagreements or 
differences of opinion, neither the claimant nor the RLCC 
has a de?nitive reference point. In addition, there is no 
legally binding document that locks various role players 
into the settlement and development process or requires 
any party to provide settlement support.
The Section 42D memorandum, as signed by the minister 
on 2 April 2001, details the ?nancial arrangements for 
the settlement. It outlines the purchase price and the 
Restitution Discretionary Grants and Settlement Planning 
Grants to be made available to the claimant. These grants as 
recorded in the memorandum have, however, been altered 
with handwritten ?gures added alongside the typed text at 
the time of the document being signed by the minister. To 
date, none of these grants have been paid out by the RLCC.
14
 Personal communication, Molaudzi, August, 2006.
Bakwena ba Mare a Phogole (Klipgat) Community Restitution Claim
10
4. Post-settlement developments 
and associated support provision
Assets
According to the pre-land transfer certi?cate of valuation 
(CA Young Valuations 2001), the various assets of the farm 
were ?in a similar condition as on the date of valuation 
on 1 June 1999? and indicates that no assets had been 
stripped from the property. 
The farm had been fenced and divided into ten large and 
seven smaller camps by the previous owner but many of 
the fences have since rusted away.
The farm has two original farmhouses. One is 282 m
2 
 
in extent and the other is 101 m
2
. Five workers? houses 
consisting of a kitchen lounge, four bedrooms, a bathroom 
and an outside toilet are also on the property, as well as a 
workshop and carport. 
At the time of transfer, there was one main farmhouse with 
smaller warehouses for the storage of farming equipment. 
The farm workers lived in thatched dwellings and an 
agreement was reached that allowed them to remain on 
the farm and required that they assist with the maintenance 
of the dwellings and help with the farming operations.
Business plan and land-use plan
The Section 42D memorandum deals with the proposed 
land use in Clause 7, stating that the claimant community 
intends ?taking over the farm as an ongoing business as it 
is with the current landowner, that is farming. Since they 
have opted for resettlement, their plans will however be 
substantiated by recommendations of development and 
agricultural professionals.?
A business plan (also referred to as the ?development 
proposal?) was prepared by the Welwyn-Mhiduve-Tlokwe 
Consortium, as appointed by the DLA. It was accepted and 
approved by the chairperson of the CPA and was forwarded 
to the RLCC on 3 May 2004. 
The plan outlines the intended land uses as being a 
continuation of the current activities, namely, dryland 
cropping and cattle farming. The plan also proposes a 
number of new activities including the establishment of a 
15
 Interviews: Claimant community members resident on the farm, June 2006.
piggery, poultry farming, vegetables, a snake park and an 
urban housing settlement.
The plan indicates that the following activities took place 
during the facilitation process:
? meetings with stakeholders
? meetings with bene?ciaries
? identi?cation of issues by means of a detailed 
questionnaire 
? discussion with the committee members of the CPA to 
determine the ?nal priorities.
The plan speci?es the following proposals for economic 
sustainability:
? Agricultural activities (extensive farming):
? 120 ha of cultivated ?elds for growing maize and 
sun?owers ? 4 job opportunities
? 508 ha for cattle grazing ? 2 job opportunities.
To date, the activities listed above have not yet been 
established, with the exception of some members bringing 
20 head of cattle and six goats of their own to graze on the 
property.
? Agricultural activities (intensive farming):
? 5 ha for vegetables ? 20 job opportunities
? 5 ha for broiler units ? 8 job opportunities
? 2 ha for pig farming ? 2 job opportunities
? 2 ha for paprika farming ? 34 job opportunities
? 5 ha for hydroponic tunnels (vegetables and cut 
?owers) ? 20 job opportunities.
Of the above planned activities, only the piggery has been 
established to date.
? Semi-agricultural activities:
? 13 ha reptile park (including ?milking? of snakes for 
venom) and a guesthouse ? 8 job opportunities.
Community respondents indicated that they were afraid 
of snakes and that they did not know where the idea for a 
snake park came from. They also felt that there would not 
be enough tourists to come to the park or a guesthouse, in 
the event that one was established.
15
Bakwena ba Mare a Phogole (Klipgat) Community Restitution Claim
11
? Non-agricultural activities (business):
? general dealer ? 3 job opportunities
? tuck shop and restaurant/tavern ? 2 job 
opportunities
? tourist shop at the snake park ? 2 job opportunities
? butchery ? 3 job opportunities.
Community members indicated that there may be potential 
to establish a butchery for fresh meat but that in the absence 
of a freezer or a cooling room, this activity could not expand 
or be lucrative. Some community members commented 
that they would not like to have a tavern on the premises as 
alcoholism would become a problem. Others commented 
that the only people who would buy from a general 
dealership would be themselves and that it would probably 
be cheaper to buy from shops in the nearby town.
16
? Non-agricultural activities (light industrial):
? sewing
? welding
? toilet paper factory
? candymaking factory
? gingerbeer brewery
? arts and crafts.
It was envisaged that a light industrial centre be constructed 
to accommodate various activities. These activities would 
create 21 job opportunties. Thus far, the arts and crafts 
project has been initiated. A group of ?ve women are 
involved and are generating a limited income.
In addition, the business plan outlines the housing and 
village layout needs. Seventy erven are planned for the 
?rst phase and provision is made for another 114 erven in 
the second phase. The plan states that an application for 
rural housing subsidies will be presented to the provincial 
government (North West Housing Board). According to 
community members, this application has yet to be made, 
and the Department of Housing (DoH) (Ma?keng of?ce) 
was unaware of any such application having been made.
Mining operations
An alluvial diamond gravel run exists in the eastern area 
of the Klipgat farm.
17
 While mining operations were 
established on the land prior to restoration, according to 
the certi?cate of valuation (CA Young Valuations 2001), no 
mining activities took place on the land as from the date 
of the initial valuation in 1999. A Heads of Agreement was 
then negotiated and signed on 1 March 2005 between 
Etruscan Diamonds (Pty) Ltd,
18
 Basson Delwery CC (now 
called Gothoma Diggings CC) and the Bakwena ba Mare 
a Phogole CPA once the settlement of the claim had been 
concluded. 
The CPA are the surface owners of the land on which the 
diamond diggings are located and Etruscan is the owner 
of the mineral rights. Etruscan appointed Basson Delwery 
cc (Gothoma Diggings cc) as the sole contractor to 
explore and mine for alluvial diamonds and to process the 
diamondiferous gravel on the property. Operations at the 
Klipgat Diamond Mine recommenced in June 2005 upon 
Etruscan Diamonds receiving a mining permit under the 
new mining legislation.
19
Article 2 of the Heads of Agreement states the following:
Etruscan will grant the MaPhogole Community a 26% 
interest
20
 in the mineral rights related to the property. 
The MaPhogole Community will not be required to 
make any contribution to costs associated with the 
Klipgat project and, subject to Article 3, the MaPhogole 
Community will be entitled to receive 26% of the pro?ts 
from the Klipgat project after payment of all expenses 
related to the project including operational costs. 
The operational costs include royalty payments to the 
existing royalty bene?ciaries under a separate agreement 
16
 Interviews: Claimant community members resident on the farm, June 2006.
17
 Alluvial diamonds in the Ventersdorp district are found in gravel runs related to palaeo-drainage systems which drained generally from north to south. 
Mining is by open pit using conventional loading and hauling equipment. The gravel is unconsolidated, thereby allowing for free digging without any 
blasting being necessary. The gravel is treated in a conventional pan plant where the material is screened, concentrated (by pans) and then X-ray sorted. 
The diamonds from the Ventersdorp district typically average one carat in size. Alluvial diamonds, unlike the majority of stones recovered by the larger 
diamond companies from kimberlite pipes, retain both their quality and size thus giving them a gemstone grading.
18
 Etruscan, through its 51% owned subsidiary, Etruscan Diamonds (Pty) Ltd, has been acquiring strategic properties in the Ventersdorp Alluvial Diamond 
District. Etruscan Diamonds (Pty) Ltd is a Canadian-based company and is owned 75% by Etruscan Diamonds Bermuda Ltd and 25% by Mountain Lake 
Resources, Inc. In turn, Etruscan Diamonds Bermuda Ltd is owned 68.5% by Etruscan Resources, Inc. Etruscan Diamonds presently holds two mining 
permits and ten prospecting permits covering approximately 257 km
2
 with an additional ?ve prospecting permits under application. Etruscan Diamonds 
has two mines in the Ventersdorp district, the Klipgat Diamond Mine and Tirisano Diamond Mine. (Information obtained from www.etruscan.com)
19
 The new Minerals and Energy Laws Act was enacted in 2004. In addition to de?ning the ownership of and access to mineral rights, it makes provision for 
the requirement of a social development plan associated with mining operations. A social development plan is required on submission of an application 
for a mining licence.
20
 In accordance with the broad-based socio-economic empowerment charter for the South African mining industry, joint ventures or partnerships are 
required to grant a 25% equity plus one share to the community. (See Appendix for details of the charter.)
Bakwena ba Mare a Phogole (Klipgat) Community Restitution Claim
12
between Etruscan and other parties. Payment of the 26% of 
pro?ts to the CPA is to be made on a monthly basis into the 
CPA?s bank account.
Article 3 deals with the payment by the community for just 
11% of the 26% equity stake, and states as follows:
The parties acknowledge that it is the intent of the 
parties that the MaPhogole community pay fair 
market value for 11% of its 26% interest in the Klipgat 
Project. In recognition of the challenges faced by the 
MaPhogole Community in ?nancing the acquisition 
cost of the 11% interest, Etruscan has agreed to accept 
payment for the 11% interest from the MaPhogole 
Community?s share of pro?ts from the Klipgat Project. 
Speci?cally, Etruscan and the MaPhogole Community 
agree that:
a) With respect to the area to initially be mined 
by Basson as described in Schedule A, the 
MaPhogole Community shall direct that 50% of 
any distribution of pro?ts which the MaPhogole 
Community would otherwise be entitled to 
receive pursuant to Article 2 in respect of its 11% 
interest in such area will be paid to Etruscan after 
Basson has processed 200,000 cubic metres of 
gravel from such area;
b) With respect to any other areas developed on the 
Property, immediately following a bulk sampling 
on such area:
i. Etruscan will conduct a feasibility study 
including a valuation of the area on a 15% net 
present value basis;
ii. Eleven percent of the total amount of the 
valuation will be deemed to be the fair market 
value and purchase price of the 11% equity 
interest previously granted by Etruscan to the 
MaPhogole Community for the area covered 
by the valuation (?Purchase Price?);
iii. The Purchase Price will be paid by the 
MaPhogole Community directing that any 
distributions of pro?ts which the MaPhogole 
Community would otherwise be entitled to 
receive pursuant to Article 2 in respect of 
its 11% interest in such area will be paid to 
Etruscan until the Purchase Price is paid to 
Etruscan in full;
iv. Should parties not agree upon evaluation, an 
independent valuation will be sought by a 
suitable quali?ed independent expert.
c) The parties herein con?rm that reference to equity 
stake/interest means the following shareholdings: 
Etruscan 74% and the MaPhogole Community 
26% of the mineral rights on the Property.
In summary, in order to acquire this 26% interest share, the 
CPA was required to pay market value for 11% (but would 
actually receive 26%). Given that the CPA did not have 
capital to purchase the acquisition of these shares, Etruscan 
deducts the payment for these shares from the CPA?s share 
of pro?ts until the purchase price is paid in full. Neither the 
members of the CPA nor the general manager of Etruscan 
were able to quantify the actual amount of the purchase 
price nor how much the community had paid to date in lieu 
of its equity share. In addition, the community members 
were not clear about how the share arrangement was 
structured or how much money, if any, they were entitled 
to receive.
Gothoma Diggings, through Etruscan, is to pay the CPA a 
monthly surface access fee of R6,000 per month (adjusted for 
in?ation) for the duration of the project as from the date of 
commencement. It is unclear how much longer the diggings 
will be operating on Klipgat, but the operations manager 
and general manager indicated that within one to two years 
the diggings could be exhausted. This will result in a loss of 
income for the community. In addition, the contractor was 
required to pay R30,000 on the commencement date and 
an additional R20,000 over a three-month period from the 
date of commencement as a ?boundary violation? fee.
Etruscan is required to keep the CPA apprised of all its 
activities by submitting quarterly reports including details 
of all explorations, ?nancial and mining activities and 
other such information as the community may reasonably 
request. The CPA is entitled to go into the mining area in 
order to review any and all data and information associated 
with the operations on the property. 
The bene?ts that are outlined in the Heads of Agreement 
document and which the community expects include the 
following:
? Support for the brick-making project through the 
provision of clay, a by-product of the diggings.
? The investigation of a bene?ciation pilot project in 
consultation with an established diamond cutter and 
to approach the Department of Minerals and Energy 
and the Department of Trade and Industry for the 
setting up of a bene?ciating training institution in an 
around the mine/region. (To date this has not taken 
place.)
? Etruscan is to actively promote employment and 
advance the social and economic welfare of the 
community in a sustainable way through the following 
initiatives:
? The hiring of community members to ?ll positions 
based on capabilities and competence at all levels 
of the project.
Bakwena ba Mare a Phogole (Klipgat) Community Restitution Claim
13
? The training of community members to acquire 
basic skills to promote their employment in the 
project. Five community members were to be 
employed in the ?rst month of operation and 
another ?ve in the second month.  Preference is to be 
given to the community on all future employment 
opportunities. (A total of ?ve community members 
have been employed to date.)
? There is to be an increase in the ratio of women 
amongst the mine employees, including women 
from the Klipgat community, and an increase in 
the employment of historically disadvantaged 
South Africans at the mine. (One woman from the 
community is currently employed in the mining 
operations.)
? Etruscan is to pay R17,000 per month (adjustable 
annually based on the in?ation rate) to the CPA for the 
duration of the Klipgat project (for as long as Gothoma 
is operating) in order to contribute to the following 
farming projects:
? Building materials and wages for the 50-sow 
piggery. (Funds have apparently been contributed 
towards the piggery but it was not clear to the 
community members what the exact amount 
was.)
? A poultry project. (None of the funds from Etruscan 
have as yet been directed to the establishment of a 
poultry project.)
? Etruscan committed itself to conduct ?rst-aid training 
for teachers and day-care workers in the community, 
in addition to all the mine employees, and to supply 
educational materials to the planned school which is 
to house 55 learners. Etruscan is to assist in sourcing 
?nances for the planned school, which was scheduled 
for construction in January 2006. (To date, no school 
has been established and training has only been 
conducted for some of those employed in the mining 
operations.)
? Etruscan agreed to use and pay an agricultural 
consultant to develop and ?nalise a business plan in 
consultation with the community, the municipality, 
and other spheres of government. (No comprehensive 
business plan has been developed and the community 
has not had the bene?t of an agricultural consultant.)
? Etruscan is to assist with the creation of a small loan 
programme by the contractor to sponsor commercial 
initiatives involving members of the community. 
(According to community members, they are unaware 
of any such loan scheme. They are, however, aware of a 
bursary having been granted to one young community 
member to study at tertiary level. The selection criteria 
and procedures for obtaining such a bursary were not 
clear to the community, but were apparently discussed 
with the chairperson.)
Under the terms of the operating agreement between 
Gothoma and Etruscan, Gothoma pays all production costs 
and is entitled to receive a percentage of total sales revenue 
from diamonds mined from the Klipgat mine ranging from 
70% to 85%, depending on the value of diamond sales in 
each quarter. The agreement is effective for the term of the 
Klipgat mining permit. During the period 23 June 2005 to 
30 November 2005, in excess of 5,600 carats were recovered 
from the Klipgat operation at an average grade of 2.02 
carats 100 m
3
. From 1 December 2005 to 28 February 2006, 
in excess of 1,900 carats were recovered from the Klipgat 
operation at an average grade of 1.64 carats per hundred 
cubic meters. Diamond sales from the Klipgat Diamond 
Mine to 30 November 2005 averaged US$454 per carat and 
US$448 for the ?rst quarter in 2006.
21
According to Etruscan?s news report of 6 December 2005, 
its alluvial diamond production for the three month period 
from September to November 2005 yielded a total of 
2,858.32 carats recovered, and sales of 2,925.37 carats with 
an average price of US$411.42 per carat. The total sales for 
this three-month period therefore stood at approximately 
US$1,203,555 (a minimum of R7 million). 
Based on the Bakwena community?s 26% interest share, 
the community was due to receive an amount after the 
operating and production costs and less its payments for 
the purchase of the shares. The CPA was, however, unable 
to con?rm the amount of money it had received and is 
currently attempting to clarify its ?nancial status and the 
income received with the auditor appointed by the previous 
CPA committee.
22
According to the CPA?s business plan:
Seeing that the mining company already assisted the 
bene?ciaries with certain projects and due of good 
relationship with the mining company, no detailed 
investigation was necessary. The following suggestions 
21
 Information obtained from Etruscan website, www.etruscan.com/s/SouthAfrica.asp 
22
 The committee is unable to trace the auditor and scheduled meetings have not been attended by the auditor. The arrangement with the auditor forms 
part of the current dispute between different groupings within the CPA and the community.
Bakwena ba Mare a Phogole (Klipgat) Community Restitution Claim
14
were made to get compensation from the mining 
company:
? The mining company should hire bene?ciaries as 
labourers.
? The mining company should assist with or 
provide grants for agricultural projects, business 
development, capacity building and housing 
projects (Business Plan 2004:14).
The attitude expressed in the business plan would seem 
to suggest that the community was operating on the basis 
of good faith and that it trusted that the mining company 
would deal fairly with them and safeguard their interests. 
The lack of clarity and an inadequate formalised agreement 
between the parties leave the community in a potentially 
vulnerable position regarding bene?ts from its major asset.
Agriculture and other 
developmental activities
The piggery
Members of the community have established a piggery on 
the farm. There are currently 27 landrace sows, 3 boars and 
approximately 40 piglets. Weaners are sold locally.
The funds to establish the piggery were drawn from 
Etruscan?s social development allocation from the mining 
operation. However, the piggery is still in need of heating for 
the newborn piglets and additional buildings are required 
as well as the renovation of the existing sties.
Livestock grazing
Individual community members have access to grazing, 
which is currently being used for 20 cattle and 6 sheep. While 
the CPA constitution outlines that members are entitled to 
grazing rights, these rights have not been practically applied 
or formalised and there are as yet no guidelines detailing 
how rights are determined or to whom they are granted. 
The current grazing rights are informal.
Arts and crafts ? Bead project
A group of ?ve women have established a bead-making 
project with the support of funds for training from Gothoma 
Diggings CC. They have undergone basic and intermediate 
training courses and are producing bead necklaces and 
earrings which they market at various tourist centres and 
lodges in the North West province. The beads are bought in 
bulk from a supplier in Johannesburg. The project currently 
uses the garage adjacent to the farmhouse as a workshop 
and display area.
In addition, the women are exploring and learning a number 
of different crafts. The mining company has sponsored a 
glass-cutting machine and the women are also making 
lamp stands and intend using recycled glass bottles to make 
drinking glasses, candleholders and other items for sale.
Brick-making project
Gothoma Diggings CC purchased a brick-making machine 
for the community and a group of community members 
have been trained in brick-making. The project has the 
potential to produce over one thousand bricks per day. It 
has supplied the Bakubung restitution claim with bricks 
and will be able to supply the Klipgat community once the 
intended housing project gets under way. The project has 
already built a row of single quarters for workers on the 
farm.
Proposed activities
Settlement
There are currently 12 families residing on the farm 
(approximately 31 people). Due to the lack of accom-
modation, in some instances three families share one 
house. 
The intention is that the CPA will provide housing for 70 
families over the short term and potentially for 130 families 
in the long term.
23
 A portion of the land has been identi?ed 
for housing development.
Some members have grown impatient waiting for housing, 
and at one stage indicated that they wished to build their 
own houses on the land. This was, however, opposed by 
the CPA and attempts are being made to speed up the 
planning for housing provision. The CPA is making contact 
with the DoH to better understand the People?s Housing 
Process and the various subsidies that the community 
could access. Confusion exists about whether community 
members will have individual ownership of the houses built 
on communal land. Various options are being considered, 
including a common title deed for Klipgat with sectional 
title ownership for members. The CPA would thus remain 
the owner of the land while members would own their 
individual homes. However, not all the members would 
qualify for housing subsidies because they earn above the 
subsidy eligibility level. Additional information is necessary 
23
 Business plan (2004); Interviews: Members, June 2006.
     
Bakwena ba Mare a Phogole (Klipgat) Community Restitution Claim
15
and a more decisive support intervention from the DoH is 
required. 
According to a member of the CPA Committee, many of the 
members are elderly and do not necessarily want to return 
to Klipgat because they are comfortable where they are, 
being closer to the facilities which they require.
24
 This will 
serve to reduce the pressure on providing housing for all 
members.
In addition, the mine provides prefabricated housing for 
community members who work at the diamond diggings. 
This accommodation will not, however, be available once 
the mining operations close down. 
Poultry
A group of women are keen to establish a poultry project. 
They have experience in chicken farming but still require 
funding for building a poultry house and the initial outlay 
for the project. 
Vegetable garden
The CPA submitted a business plan for the establishment 
of a community vegetable garden but this has yet to be 
assessed by the Department of Agriculture. However, 
during the week of the research site visit, the Department of 
Health visited the farm and requested that the community 
establish a vegetable garden within two weeks as the 
Minister of Health was to be paying a visit to the farm. 
The community were confused and frustrated by this visit 
and the fact that no sustainable development was being 
encouraged or supported. 
Literacy
A member of the CPA committee outlined the need for 
mother-tongue adult basic education and training (ABET). 
She is busy investigating various options for ABET classes 
to be held.
Electricity supply
Members of the CPA highlighted the dif?culties experienced 
with the current electricity service and supply. The electricity 
supply to buildings accommodating some of the members 
is linked to the supply for the piggery but there is only one 
card meter. The residents intend separating the metering 
and payment of their domestic electricity supply from that 
used by the piggery. 
Residents on the farm are required to buy electricity from 
Carletonville. Due to the recent municipal demarcations 
and the protest action in this regard, Klipgat residents 
were forced to buy electricity from one speci?c supplier in 
Khutsong. Travel costs to this supplier almost doubled the 
cost of their electricity.
The community has experienced dif?culties in obtaining 
support from Eskom regarding improving their current 
electricity supply.
Sources of support
Support from the Legal Resources Centre
The claimant community was supported and represented by 
the LRC during the initial process of lodging and gazetting 
the claim and during the process of settlement. The LRC 
also supported the community thereafter by following up 
with the RLCC regarding the non-inclusion of agreed-upon 
grant allocations in the Settlement Agreement and the 
ful?lment of aspects of the Settlement Agreement, such as 
the disbursement of grants to the CPA.
25
Support from the Regional Land Claims 
Commission
Correspondence from the RLCC: North West to the LRC, 
representing the Klipgat community, shows that in 2002 the 
claimant had yet not received any post-settlement support 
in the form of grants. This indicates that it could not disburse 
these grants as the exact number of bene?ciaries had not 
yet been veri?ed. The RLCC had not, at the time, appointed 
a service provider to conduct the bene?ciary veri?cation 
process. To date, members of the claimant community have 
not received grant funding from the RLCC.
The project of?cer at the of?ce of the RLCC has more 
recently been instrumental in linking the community with 
other potential providers of support, more speci?cally 
the Department of Agriculture and the local municipality. 
The project of?cer has secured ?nancing from the RLCC?s 
RDG budget to purchase a vehicle for the CPA at a cost 
of R100,000. The vehicle is due to be delivered in the 
near future. The project of?cer has drawn up a transport 
policy document to guide the community in the use and 
maintenance of the vehicle. 
Support from the Department of Minerals and 
Energy
According to members of the interim CPA committee, the 
Department of Minerals and Energy (DME) has played a 
24
 Interview: J. Nape, June 2006.
25
 LRC Correspondence: LRC to RLCC: North West, 19 December 2000.
Bakwena ba Mare a Phogole (Klipgat) Community Restitution Claim
16
negligible role in providing information or support to the 
claimant community.
Interviews with the DME regarding Klipgat revealed a 
lack of understanding of the terms and conditions of the 
mining contract; the bene?ts that would accrue to the 
community; the current status and projected time frame of 
the mining operation; and the time frame and conditions 
of the rehabilitation process once mining operations have 
ceased.
26
It would seem that the contract between the initial CPA 
committee and the mining contractor was not overseen by 
the DME, and the DME apparently made no interventions to 
protect the interests of the community.
27
 
A number of the current tensions that exist within the 
community pertain to the arrangements regarding the 
mining contract. In particular, it is alleged that the original 
committee entered into a contract with the mining 
contractor without any monitoring of the mining operations, 
and the committee refused to share copies of the contract 
with the community.
28 
The Assistant Director: Mineral Laws at the DME indicated 
that the existing signed contract between the community 
and the contractor contained a number of critical gaps and 
could not be viewed as a fair or complete contract.
29
Support from the Department of Agriculture 
The Department of Agriculture con?rmed that the Klipgat 
business plan for a 20-sow unit piggery and vegetable 
garden had been submitted in October 2005 but that it 
lacked suf?cient ?nancial analysis and had been reworked. 
There is a large backlog of business plans still to be processed, 
reportedly due to a lack of capacity within the department 
(there are four economists and ?nancial advisors within 
the department?s North West of?ce).
30
 The Department of 
Agriculture has committed itself to providing training and 
technical support to the community once the plan has 
been approved. 
According to the divisional manager for the Potchefstroom 
Local Development Centre of the Department of 
Agriculture, the department assisted the Klipgat CPA by 
developing a proposal for crop production. It was given to 
the RLCC project of?cer at the time but nothing came of it 
thereafter.
31
In addition, the divisional manager highlighted the 
department?s concern with unsustainable developments 
which are encouraged by other agencies or government 
departments but for which no training or sustained support 
is provided. He cited the case of the Department of Health?s 
promotion of a vegetable garden saying: 
The communication lines are not open, especially 
between the Department of Health and the 
Department of Agriculture. The Department of Social 
Development gives money for projects but then leaves 
the responsibility for maintaining and sustaining the 
project with the Department of Agriculture. We end up 
picking up the problems, without having been included 
in the initial process of setting up projects. You can?t 
just throw money at communities and expect that 
they can ?y with a project.
A concern was raised by the divisional manager regarding 
the late stage at which the Department of Agriculture was 
brought into the restitution settlement processes: 
The department should be brought in right from the 
beginning. At the moment we are brought in too late. 
We are sometimes requested to do feasibility reports 
but then there?s silence for a long time and the land 
gets bought and yet lots more should be happening in 
between and during these steps. In addition, farms can 
get vandalised in between the step after the farmer 
leaves and before the community moves onto the 
land.
32
26
  Interviews: DME of?cials, June 2006.
27
  Interview: Interim CPA committee members, June 2006.
28
  Correspondence: Bakwena ba Mare a Phogole Crisis Committee to Ms Lerato Molaudzi, undated.
29
  Interview: R.  Mandiwana, June 2006.
30
  The North West of?ce of the Department of Agriculture has at least 23 business plans that require assessment and processing.
31
  Interview: J. Swanepoel, June 2006.
32
  Interview: J. Swanepoel, June 2006.
Bakwena ba Mare a Phogole (Klipgat) Community Restitution Claim
17
The Department of Agriculture has various funds that it can 
draw on for supporting restitution projects. These include 
the Post-settlement Fund which can be used to purchase 
inputs such as seeds; a Poverty Alleviation Fund which is run 
in conjunction with the Department of Social Development 
and includes starter packs for establishing poultry or 
vegetable projects; the Provincial Infrastructure Grant; the 
Comprehensive Agriculture Support Programme to be 
used for infrastructure developments; the government Top-
up Fund for providing support to communities (and which 
receives a contribution from the Department of Provincial 
and Local Government) which can be accessed for inputs 
and movable assets; and the Letseme la Mantsha Tlala (Food 
for the Nation) Project which addresses household food 
security through providing starter packs for chicken and 
vegetable projects. To date, none of these funds have been 
accessed by the Bakwena ba Mare a Phogole community.
Support from the municipality
The RLCC: North West wrote to the Rustenburg Municipality 
inviting them to attend a CPA meeting on 26 October 2001 in 
order to discuss the resettlement needs of the community.
33
  
Various meetings have been held with the municipality, 
including the Ventersdorp Local Municipality. 
The Klipgat farm features in the Ventersdorp Municipality?s 
integrated development plan (IDP) and the IDP manager 
has shown interest in the development of activities on the 
farm, but as yet, none of the projects that are listed have 
received tangible ?nancial or technical support from the 
municipality or other identi?ed agencies.
The intention of the IDP manager is to ensure that the 
community is put in touch with the relevant service 
providers if the municipality cannot assist them directly. The 
municipality?s monthly cluster meetings involving various 
government departments have enabled the municipality 
to raise the needs of different communities, including those 
of the Bakwena ba Mare a Phogole community, and to 
facilitate contact as necessary. 
The IDP manager in the Ventersdorp Municipality indicated 
that the municipality viewed itself as having a duty to 
support the activities of the community at Klipgat: 
Because Klipgat is a restitution project, we have to 
provide to the community and ful?l our responsibility. 
Our role as government is to provide basic services. The 
grants the communities get are not suf?cient. After 
we have completed the process of fomalising rural 
villages, we want to engage with the People?s Housing 
Process for Klipgat. Right now, all the Department 
of Agriculture?s proposed projects are with the bid 
committee for selection but we have supported them 
throughout.
34
 
She went on to say that the municipality could assist Klipgat 
with water tanks for the vegetable garden as a temporary 
measure and is planning to construct storm-water channels 
during the next ?nancial year.
A member of the CPA committee indicated that they ?nd 
it dif?cult to see which government department is funding 
what within the IDP. They have proposed that the IDP 
should give details regarding the different kinds of support 
provided and the source of the funding for these.
35
Support from the Department of Health
Besides the recent visit from the Department of Health 
regarding the establishment of a vegetable garden, the 
department?s mobile clinic visits the area from time to 
time. Interviewees indicated that the mobile clinic does not 
always come on the days as scheduled and sometimes does 
not come at all. This has serious consequences for people 
who rely on the clinic for their medication supplies.
Support from the Department of Housing
To date, the DoH has been approached for information 
regarding the various housing subsidies but, according to 
members of the community, has not shown interest in the 
development of housing on the farm.
In summary, there are a number of service providers 
and agencies that are aware of the Klipgat community?s 
development needs. While some have engaged with the 
community and encouraged them regarding their various 
developmental aims, little concrete or sustained support 
has been provided to date. The bulk of the ?nancial and 
training support received thus far has come from the mining 
operations on the farm. Most importantly, no agency is 
taking responsibility for supporting the community in the 
post-settlement phase, or systematically following up with 
government agencies to ensure that the expected bene?ts 
and services are actually delivered.
33
 
Correspondence: RLCC with Rustenburg Local Municipality, 22 October 2001.
34
 Interview: M. Matuba, June 2006.
35
 Interview: M. Linchwe, June 2006.
Bakwena ba Mare a Phogole (Klipgat) Community Restitution Claim
18
5. Conclusions and strategic 
issues for consideration 
Klipgat is a claim with considerable potential in terms of 
agriculture, residential development and mineral resources. 
In all areas, however, the potential bene?ts are either 
failing to materialise at all or remain at a level much lower 
than might be expected. Agricultural development on 
the restored land is slow and uncoordinated and housing 
development is not moving, while the community has 
been left on its own to attempt to obtain some bene?ts 
from the valuable diamond resources on its property. The 
CPA, the key institution representing the community, lacks 
the external support necessary to function effectively, and 
members are largely in the dark as to the various processes 
going on around them. While the local municipality and 
government departments, such as Agriculture, appear 
sympathetic to the needs of the claimants, there is a lack 
of coordination between agencies and a general failure to 
engage effectively with the claimant community. Many of 
these problems can be linked to the lack of overall support 
from the RLCC, which might be expected to ensure effective 
planning for post-settlement, to coordinate implementation, 
to support the CPA and to ensure that the necessary support 
from a range of agencies is actually secured and delivered 
at the appropriate time. This in turn can be related to a lack 
of effective planning by the RLCC to carry out this function 
itself, and its failure to appoint any other agency that might 
carry out such vital functions.  
It is proposed that the following issues require consideration 
and act as strategic pointers for restitution claims of a similar 
nature:
? The de?nition of membership remains unclear. 
While membership is de?ned in the CPA constitution, 
the application of this de?nition remains confusing to 
the community, and needs to be resolved.
? Tensions within the CPA are threatening to 
undermine the progress made by the community. 
As a result of signi?cant issues not having been 
addressed during the early stage of the settlement 
and planning process, a number of issues have been 
allowed to fester and are contributing to a great deal 
of tension within the community. Comprehensive 
institutional support to the CPA is required.
? Discussions and planning have taken place but 
have not been followed through with action. While a 
great deal of preliminary work has been done in terms 
of developing proposals and business plans, very little 
has actually come to fruition. Some of the reasons for 
this are the dysfunctional nature of the CPA committee, 
a lack of capacity in various government departments, 
poor coordination between agencies, and the lack of 
social cohesion within the community, partially as a 
result of many of the members living some distance 
away from the farm and not being integrally involved 
in its activities. Equally important, however, is the lack 
of any speci?c agency to drive the process and support 
the community. 
? The relationship between the mining company, 
which has mineral rights on the community?s land, 
and the CPA remains an unequal one. In addition, 
the terms and conditions of the agreement between 
the two parties are not well de?ned or understood 
by the community. The current agreement and the 
operations of the mining company have the potential 
of leaving the community in a very vulnerable and 
exploited position. This requires intervention from 
the DME. In addition, it remains unclear whether the 
community is entitled to compensation for the mineral 
rights it lost as a result of dispossession and/or whether 
the community would have been entitled to apply for 
a mining licence in their own right. The changes in 
the Minerals and Energy Laws Amendment Act 11 of 
2005 regarding the ownership of mineral wealth as an 
asset of the state rather than that of the landowner, 
may have implications for the community, but these 
remain unclear. The community is unable to quantify 
or realise the potential bene?ts that might accrue from 
their valuable asset. There is no systematic monitoring 
of the agreement, and the CPA lacks the legal and 
commercial support services necessary to advance 
its interests. For the community to have entered into 
such a complex, and potentially valuable, arrangement 
of this sort with so little understanding of the process, 
and so little support from agencies such as the RLCC 
and the DME, is a cause for serious concern, and still 
needs to be addressed.
? The community remains unclear about whether 
projects that are established on the farm are to 
be viewed as communal projects or as individual 
projects. While there is general consensus that the 
communal operations of the farm should not be 
privatised, there are also those who propose that the 
contributions made by individual members need to 
Bakwena ba Mare a Phogole (Klipgat) Community Restitution Claim
19
be acknowledged. The piggery is run as a communal 
project, but those who participate in it indicate that 
they work hard on the project while others who are 
not involved stand to bene?t from it. Likewise, the 
discussions around establishing a poultry project 
appear fraught with differences of opinion as to whether 
it will be a project set up by a group of individuals for 
their own bene?t, or as a communal project providing 
employment to a group or members. These differences 
of opinion point to a lack of clarity regarding the 
rules of ownership and how the rights of individual 
members are vested. While the constitution outlines 
rights to assets and facilities on the farm, there is no 
clarity regarding whether a project set up by a group 
of residents on the farm using funds gained from the 
collective should be regarded as a community-owned 
project for the bene?t of the broader community or 
for the sole bene?t of those individuals working in the 
project. Basic information on the legal de?nition of a 
community claim, and the business options open to 
members, need to be fully understood by RLCC staff 
and clearly communicated to community members.
? Housing settlement on communal land requires 
further investigation. The community remains 
confused about the housing ownership rights of 
individuals who access subsidies for the construction 
of houses on communally-owned land. The servicing 
of such a housing settlement by the municipality also 
remains unclear to the community. Further intensive 
involvement of the DoH and of the municipality 
will be required to establish the status of housing 
developments on the land. 
? Material bene?ts have been slow to accrue to 
the community, and no clear plans are in place 
for the management of ?nancial resources. 
The implementation of the Klipgat settlement has 
dragged out over many years, and yet bene?ts have 
been extremely slow to accrue to the community. 
Restitution grants promised to the community have 
yet to be paid out, and there remains confusion (within 
the community and, seemingly, within the RLCC), as 
to the total value of such grants and the timetable 
for payment. Substantial bene?ts might be expected 
from the diamond mine on the community?s land, 
but it could not be established how much revenue 
has already ?owed to the community, what has 
happened to this revenue, and how much more is 
owed. Furthermore, no effective planning has been 
undertaken for the use of such revenue when it does 
materialise. The Klipgat community is clearly in need 
of professional support in its ?nancial dealings, and it 
might be expected that this would be provided as part 
of a comprehensive settlement agreement.
Bakwena ba Mare a Phogole (Klipgat) Community Restitution Claim
20
6. Source documents
Primary sources
Reports, minutes and documents
Agreement of sale entered into between Bakwena ba Mare 
a Phogole, the 14 represented by chairperson of the CPA 
and Johannes Christoffel Momberg. 18 July 2001. (As found 
in the RLCC: North West Klipgat Project File).
Business plan and development framework for the Klipgat 
bene?ciaries. 2004. Development proposal compiled by 
Welwyn-Mhiduve-Tlokwe Consortium. (As found in the 
RLCC: North West Klipgat Project File).
CA Young Valuations. 1999. Valuation report farm Klipgat 18 
IQ.  1 June.  (As found in the RLCC: North West Klipgat Project 
File).
CA Young Valuations. 2001. Klipgat Certi?cate of Valuation. 
14 November. (As found in the RLCC: North West Klipgat 
Project File).
Deed of sale made and entered into by and between 
Johannes Christoffel Momberg and the Klipgat Communal 
Property Association. Unsigned and undated. (As found in 
the RLCC: North West Klipgat Project File).
Deed of transfer number 7241/1918. (As found in the RLCC: 
North West Klipgat Project File).
Deed of transfer number 7249/1918. (As found in the RLCC: 
North West Klipgat Project File).
Deed of transfer number 27876/1966. (As found in the RLCC: 
North West Klipgat Project File).
Deed of transfer number 23273/1945. (As found in the RLCC: 
North West Klipgat Project File).
Department of Land Affairs. Directorate: Restitution. 
Undated.  Research report Klipgat 18 IQ. (As found in the 
RLCC: North West Klipgat Project File).
Department of Regional and Land Affairs. 1994. Eis van 
Bakwena ba Mare a Phogole: Gedeelte van die plaas Klipgat 
18 IQ. 9 June. (As found in the RLCC: North West Klipgat 
Project File).
Government Gazette. 12 May 1995. Notice No. 16407. 
Government Gazette. 13 November 1998. Notice 2727 of 
1998.
Heads of agreement entered into by and between Etruscan 
Diamonds (Pty) Ltd, represented by Kevin Macneill, Bakwena 
ba Mare a Phogole community, represented by Rev. Maurice 
Ngakane, and Basson Delwery CC, represented by Hendrik 
Basson. 1 March 2005.
Memorandum: Aansoek om herstel van eiendomsreg vir die 
restant van Klipgat 18 IQ. 23 August 1993. (As found in the 
RLCC: North West Klipgat Project File).
Memorandum: Advisory Commission on Land Allocation. 
7 April 1993. (As found in the RLCC: North West Klipgat 
Project File). 
Memorandum: Department of Regional and Land Affairs. 
14 June 1994. (As found in the RLCC: North West Klipgat 
Project File).
Memorandum: Klipgat draft pre-Gazette report. 23 July 1998. 
(As found in the RLCC: North West Klipgat Project File).
Memorandum: Mandate to negotiate in terms of the 
Restitution of Land Rights Act, 1994. 2000. (As found in the 
RLCC: North West Klipgat Project File).
Memorandum: Submission in terms of Section 42D of the 
Restitution of Land Rights Act 22 of 1994, as amended. (As 
found in the RLCC: North West Klipgat Project File).
Minutes of the meeting held between Bakwena ba Mare 
a Phogole CPA, Bakwena ba Mare a Phogole management 
team, Moalusi/Ngakane family representatives and the 
RLCC of?cials at the A14 Klipgat farm. 25 April 2006.
Offer to purchase which constitutes deed of sale made and 
entered into by and between Johannes Christoffel Momberg 
and the Department of Land Affairs. Unsigned and undated. 
(As found in the RLCC: North West Klipgat Project File).
Pre-gazetting research report. Undated. (As found in the 
RLCC: North West Klipgat Project File).
Regional Land Claims Commission. Undated. Status report 
for remaining extent of Klipgat land claim (As found in the 
RLCC: North West Klipgat Project File).
Resolution of the Bakwena ba Mare a Phogole community. 
Undated. (As found in the RLCC: North West Klipgat Project 
File).
Bakwena ba Mare a Phogole (Klipgat) Community Restitution Claim
21
Resolution of the direct descendants of the co-owners: 
Klipgat No. 18 IQ Ventersdorp district. 30 August 1998. (As 
found in the RLCC: North West Klipgat Project File).
Restoration pro?le. Undated. (As found in the RLCC: North 
West Klipgat Project File).
Ventersdorp Local Municipality. Summary of IDP priority 
issues on the municipal IDP. (Available from Ventersdorp 
Local Municipality of?ces, Ventersdorp).
Correspondence
Note: All correspondence was found in the RLCC: North 
West, Klipgat Project File.
Correspondence: Bakwena ba Mare a Phogole Crisis 
Committee/Concerned Group to Ms Lerato Molaudzi.
Undated. 
Correspondence: Hans Gouws Attorneys to RLCC. 
14 November 2000. Re: Klipgat 18 IQ restitution claim.
Correspondence: Hans Gouws Attorneys to RLCC. 
1 December 2000. Re: Klipgat 18 IQ restitution claim. 
Correspondence: Legal Resources Centre to RLCC. 
19 December 2000. Re: Klipgat 18 IQ communal Property 
Association and memorandum of agreement.
Correspondence: Legal Resources Centre to RLCC. 25 January 
2001. Re: Klipgat 18 IQ Communal Property Association and 
memorandum of agreement in terms of Act 22 of 1994.
Correspondence: Legal Resources Centre ?le notes and 
personal communication with Kobus Pienaar. August 2006.
Correspondence: RLCC to CA Young Valuations. 7 November 
2001. Re: Pre-land transfer valuation certi?cate.
Correspondence: RLCC to Department of Minerals and 
Energy. 22 October 2001. Re: Bakwena ba Mare a Phogole 
Klipgat 18 IQ restitution claim.
Correspondence: RLCC to Hans Gouws Attorneys. 8 February 
2001. Re: Klipgat 18 IQ restitution claim.
Correspondence: RLCC to Legal Resources Centre. 19 
September 2002. Re: Post-settlement development of the 
farm Klipgat 18 IQ.
Correspondence: RLCC to Rustenburg Local Municipality. 22 
October 2001. Re: Bakwena ba Mare a Phogole Klipgat 18 IQ 
restitution claim.
Secondary sources
Community Agency for Social Enquiry (CASE). 2005. Report 
on the Klipgat restitution project. 
Council for Scienti?c and Industrial Research (CSIR). 2005. 
CPI Review.  29 April.
Etruscan Resources, Inc. 2006. Social programs. http://www.
etruscan.com/s/SocialProgram.asp?ReportID=102185&_
Title=South-Africa
Etruscan Resources, Inc. 2006. South Africa. http://www.
etruscan.com/s/SouthAfrica.asp
Mountain Lake Resources Press Releases. 2005. Etruscan gets 
green light to develop second alluvial diamond concession, 
South Africa. http:/www.mountain-lake.com/pr/062305.
htm
Bakwena ba Mare a Phogole (Klipgat) Community Restitution Claim
22
7. Key informants and contact 
details
Lerato Molaudzi (RLCC: North West, Project Of?cer for Klipgat) 018 3923080
0824183365
LLMolaudzi@dla.gov.za
Maropene Makwala (National Department of Agriculture) 018 2975798
Sipho Mosegedi (Department of Agriculture, Extension Of?cer ? Crops) 018 2643010
Wlliam Ralokwakweng (Department of Agriculture, Extension Of?cer 
? Vegetables)
018 2643010
Meokgo Matuba (IDP manager, Ventersdorp Municipality) 018 2642051
0727432780
Sophy Thekiso (Member (Poultry project)) Resident on the farm
Selina Malefetse (Member (Bead work project)) Resident on the farm
Martha Linchwe (CPA committee member) 0822996830
Frans Thekiso (Community member) Resident on the farm
Johannes Nape (CPA committee member, Acting Chairperson) 0829549153
Bernice Ntobong (Member) Resident on the farm
Geoffrey Thekiso (Member) Resident on the farm
Molosi B. Thekiso (Member) Resident on the farm
Phomudzo Nethwadzi (Department of Minerals and Energy, 
Environmental of?cer, Klerksdorp of?ce)
Rudzani Mandiwana (Department of Minerals and Energy, Assistant 
Director: Mineral Laws, Klerksdorp of?ce)
Mr Ofentse (Department of Health, North West province,  Mmabatho) 0825994713
Mr J. J. I. Swanepoel (Divisional Manager for Potchefstroom Local 
Development Centre, Department of Agriculture, North West province)
0828724575
018 2975330
Kevin McNeill (General Manager: Etruscan Resources Incorporation 
Mining Company)
0829080598
Hennie Basson (Gothoma Diggings CC) 0829080598
Rivonia Maboyi (Local Economic Development Manager, Ventersdorp 
Local Municipality)
0825356065
018 2644679
Oupa Macana (Department of Housing, Ma?keng) 018 3876000
Tebogo Petlane (ESKOM) 018 4646666
Bakwena ba Mare a Phogole (Klipgat) Community Restitution Claim
23
8. Appendix 
Vision
All the actions and commitments set out below are in the 
pursuit of a shared vision of a globally competitive mining 
industry that draws on the human and ?nancial resources 
of all South Africa?s people and offers real bene?ts to all 
South Africans. The goal of the empowerment charter is to 
create an industry that will proudly re?ect the promise of a 
non-racial South Africa.
Preamble
Recognising:
? The history of South Africa, which resulted in blacks, 
mining communities and women largely being 
excluded from participating in the mainstream of the 
economy, and the formal mining industry?s stated 
intention to adopt a proactive strategy of change to 
foster and encourage black economic empowerment 
(BEE) and transformation at the tiers of ownership, 
management, skills development, employment equity, 
procurement and rural development;
? The imperative of redressing historical and social 
inequalities as stated by the Constitution of the 
Republic of South Africa, in inter alia section 9 on 
equality (and unfair discrimination) in the Bill of 
Rights;
? The policy objective stated in the Mineral and 
Petroleum Resources Development Act to expand 
opportunities for historically disadvantaged persons to 
enter the mining and minerals industry or bene?t from 
the exploitation of the nation?s mineral resources;
? The scarcity of relevant skills has been identi?ed as 
one of the barriers to entry into the mining sector by 
historically disadvantaged South Africans (HDSA?s);
? The slow progress made with employment equity in 
the mining industry compared to other industries.
Noting that
? It is government?s stated policy that whilst playing a 
facilitating role in the transformation of the ownership 
pro?le of the mining industry it will allow the market 
to play a key role in achieving this end and it is not 
the government?s intention to nationalise the mining 
industry.
? The key objectives of the Mineral and Petroleum 
Resources Development Act and that of the Charter 
will be realised only when South Africa?s mining 
industry succeeds in the international market place 
where it must seek a large part of its investment and 
where it overwhelmingly sells its product and when 
the socio-economic challenges facing the industry are 
addressed in a signi?cant and meaningful way. 
? The transfer of ownership in the industry must take 
place in a transparent manner and for fair market 
value.
? That the following laws would also assist socio-
economic empowerment: 
? The Preferential Procurement Framework Act (No. 
5 of 2000);
? The Employment Equity Act (No 55 of 1998);
? The Competition Act (No. 89 of 1998) (Also ref. to 
the Amendment Act No. 35 of 1999 and subsequent 
amendments);
? The Skills Development Act (No. 97 of 1998).
Therefore
The signatories have developed this Charter to provide a 
framework for progressing the empowerment of historically 
disadvantaged South Africans in the Mining and Minerals 
Industry. The signatories of this Charter acknowledge:
Section 100 (2) (a) of the Mineral and Petroleum Resources 
Development Act, which states that, to insure the attainment 
of government?s objectives of redressing historical social 
and economic inequalities as stated in the Constitution, 
the Minister of Minerals and Energy must within six months 
from the date on which this act takes effect develop a Broad-
Based  Socio-Economic Empowerment (BBSEE) Charter. 
1. Scope of application
This Charter applies to the South African mining industry.
2. Interpretation
For the purposes of interpretation, the following terms 
apply:
Broad-Based Socio-Economic Empowerment (BBSEE) refers 
to a social or economic strategy, plan, principle, approach or 
act, which is aimed at:
? Redressing the results of past or present discrimination 
based on race, gender or other disability of historically 
disadvantaged persons in the minerals and petroleum 
industry, related industries and in the value chain of 
such industries; and
? Transforming such industries so as to assist in, provide 
Broad-based socio-economic empowerment charter for the  
South African mining industry
Bakwena ba Mare a Phogole (Klipgat) Community Restitution Claim
24
for, initiate, facilitate or  bene?t from the: 
? Ownership participation in existing or future 
mining, prospecting, exploration and bene?ciation 
operations;
? Participation in or control of management of such 
operations;
? Development of management, scienti?c, engineer-
ing or other skills of  HDSA?s;
? Involvement of or participation in the procurement 
chains of operations;
? Integrated socio-economic development for host 
communities, major labour sending areas and 
areas that due to unintended consequences of 
mining are becoming ghost towns by mobilising 
all stakeholder resources.
The term Historically Disadvantaged South Africans (HDSA) 
refers to any person, category of persons or community, 
disadvantaged by unfair discrimination before the 
Constitution of the Republic of South Africa, 1993 (Act No. 
200 of 1993) came into operation.
HDSA Companies are those companies that are owned or 
controlled by historically disadvantaged South Africans.
Major labour sending areas refer to areas from where 
a signi?cant number of mineworkers are or have been 
recruited.
Ghost towns refer to areas whose economies were 
dependent on mining and therefore could not survive 
beyond the closure or signi?cant downsizing of mining 
activities.
Ownership of a business entity can be achieved in a number 
of ways:
? A majority shareholding position, i.e. 50% + 1 share; 
? Joint ventures or partnerships (25% equity plus one 
share);
? Broad based ownership (such as HDSA dedicated 
mining unit trusts, or employee share ownership 
schemes).
3. Objectives
The objectives of this charter are to: 
? Promote equitable access to the nation?s mineral 
resources to all the people of South Africa; 
? Substantially and meaningfully expand opportunities 
for HDSA?s including women, to enter the mining and 
minerals industry and to bene?t from the exploitation 
of the nation?s mineral resources;
? Utilise the existing skills base for the empowerment of 
HDSA?s;
? Expand the skills base of HDSA?s in order to serve the 
community;
? Promote employment and advance the social and 
economic welfare of mining communities and the 
major labour sending areas; and
? Promote bene?ciation of South Africa?s mineral 
commodities.
4. Undertakings
All stakeholders undertake to create an enabling 
environment for the empowerment of HDSA?s by subscribing 
to the following:
4.1 Human resource development
The South African labour market does not produce enough 
of the skills required by the mining industry. Stakeholders 
shall work together in addressing this skills gap in the 
following manner:
? Through the standing consultative arrangements they 
will interface with statutory bodies such as the Mines 
Quali?cations Authority (MQA), in the formulation of 
comprehensive skills development strategies that 
include a skills audit;
? By interfacing with the education authorities and 
providing scholarships to promote mining related 
educational advancement, especially in the ?elds of 
mathematics and science at the school level;
? By undertaking to ensure provision of scholarships 
and that the number of registered learnerships in the 
mining industry will rise from the current level of some 
1200 learners to not less than 5000 learners by March 
2005; and
? Through the MQA shall undertake to provide 
skills training opportunities to miners during their 
employment in order to improve their income earning 
capacity after mine closure.
Government undertakes that:
? In its bi-lateral relations with relevant countries, 
undertakes to secure training opportunities for HDSA 
companies? staff, as well as exchange opportunities 
with mining companies operating outside of South 
Africa; 
? Through the MQA and in collaboration with academic 
institutions, DME associated institutions, NGO?s, and 
the Gender Commission, shall provide training courses 
in mining entrepreneur?s skills;
Companies undertake:
? To offer every employee the opportunity to become 
functionally literate and numerate by the year 2005 in 
consultation with labour; 
? To implement career paths to provide opportunities 
to their HDSA employees to progress in their chosen 
careers; and
? To develop systems through which empowerment 
Bakwena ba Mare a Phogole (Klipgat) Community Restitution Claim
25
groups can be mentored  as a means of capacity 
building.
4.2 Employment equity
Companies shall publish their employment equity plans 
and achievements and subscribe to the following:
? Establish targets for employment equity, particularly 
in the junior and senior management categories. 
Companies agree to spell out their plans for 
employment equity at the management level. The 
stakeholders aspire to a baseline of 40 percent HDSA 
participation in management within 5 years;
? South African subsidiaries of multinational companies 
and South African companies, where possible, will focus 
their overseas placement and/or training programmes 
on historically disadvantaged South Africans;
? Identi?cation of a talent pool and fast tracking it. This 
fast tracking should include high quality operational 
exposure;
? Ensuring higher levels of inclusiveness and 
advancement of women. The stakeholders aspire to a 
baseline of 10 percent of women participation in the 
mining industry within 5 years; and
? Setting and publishing targets and achievements.
4.3 Migrant Labour
Stakeholders undertake to:
? Ensure non-discrimination against foreign migrant 
labour.
4.4 Mine Community and rural development
Stakeholders, in partnership with all spheres of government, 
undertake to:
? Co-operate in the formulation of integrated 
development plans for communities where mining 
takes place and for major labour-sending areas, with 
special emphasis on development of infrastructure.
4.5 Housing and living conditions
Stakeholders, in consultation with the Mine Health and 
Safety Council, the Department of Housing and organised 
labour, undertake to:
? Establish measures for improving the standard of 
housing including the upgrading of hostels, conversion 
of hostels to family units and the promotion of home 
ownership options for mine employees; and
? Establish measures for improving of nutrition of mine 
employees. 
4.6 Procurement
Procurement can be broken down into three levels, namely: 
capital goods; services; and consumables.
Stakeholders undertake to give HDSA?s a preferred supplier 
status, where possible, in all three levels of procurement. To 
this end stakeholders undertake to:
? Identify current levels of procurement from HDSA 
companies;
? Commit to a progression of procurement from HDSA 
companies over a 3 to 5-year time frame re?ecting the 
genuine value added by the HDSA provider; 
? Encourage existing suppliers to form partnerships with 
HDSA companies, where no HDSA company tenders to 
supply goods or services; and
? Stakeholders commit to help develop HDSA procure-
ment capacity and access Department of Trade and 
Industry (DTI) assistance programmes to achieve this.
? List of suppliers: It is envisaged that information on all 
HDSA companies wishing to participate in the industry 
will be collected and published.  All participants in the 
industry will assist the DTI in compiling such a list that 
will inter alia be published by government on the 
Internet and updated regularly.
4.7 Ownership and Joint Ventures
Government and industry recognise that one of the means 
of effecting the entry of HDSA?s into the mining industry 
and of allowing HDSA?s to bene?t from the exploitation of 
mining and mineral resources is by encouraging greater 
ownership of mining industry assets by HDSA?s. Ownership 
and participation by HDSA?s can be divided into active or 
passive involvement as follows:
Active involvement:
? HDSA controlled companies (50 per cent plus 1 vote), 
which includes management control.
? Strategic joint ventures or partnerships (25 per cent 
plus 1 vote). These would include a Management 
Agreement that provides for joint management and 
control and which would also provide for dispute 
resolution.
? Collective investment, through ESOPS and mining 
dedicated unit trusts. The majority ownership of these 
would need to be HDSA based.  Such empowerment 
vehicles would allow the HDSA participants to vote 
collectively.
Passive involvement:
? Greater than 0 percent and up to 100 percent 
ownership with no involvement in management, 
particularly broad based ownership like ESOPs. 
In order to measure progress on the broad transformation 
front the following indicators are important:
? The currency of measure of transformation and 
ownership could, inter alia, be market share as 
measured by attributable units of South African 
production controlled by HDSA?s.
? That there would be capacity for offsets which would 
entail credits/offsets to allow for ?exibility.
? The continuing consequences of all previous deals 
would be included in calculating such credits/offsets 
Bakwena ba Mare a Phogole (Klipgat) Community Restitution Claim
26
in terms of market share as measured by attributable 
units of production.
? Government will consider special incentives to 
encourage HDSA companies to hold on to newly 
acquired equity for a reasonable period.
In order to increase participation and ownership by HDSA?s 
in the mining industry, mining companies agree:
? To achieve 26% HDSA ownership of the mining 
industry assets in 10 years by each mining company; 
and
? That where a company has achieved HDSA participation 
in excess of any set target in a particular operation 
then such excess maybe utilised to offset any shortfall 
in its other operations. All stakeholders accept that 
transactions will take place in a transparent manner 
and for fair market value. Stakeholders agree to meet 
after 5-years to review the progress and to determine 
what further steps, if any, need to be made to achieve 
the 26% target. 
4.8 Beneficiation 
This Charter will apply to mining companies in respect of 
their involvement in bene?ciation activities, speci?cally 
activities beyond mining and processing. These include 
production of ?nal consumer products.
Mining companies will be able to offset the value of the 
level of bene?ciation achieved by the company against its 
HDSA ownership commitments.
Mining companies agree to:
? Identify their current levels of bene?ciation.
? Indicate to what extent they can grow the baseline 
level of bene?ciation.
4.9 Exploration and prospecting
Government will support HDSA companies in exploration 
and prospecting endeavours by, inter alia, providing 
institutional support.
4.10 State assets
Government will ensure compliance with the provisions of 
this Charter and be exemplary in the way in which it deals 
with state assets.
4.11 Licensing
To facilitate the processing of licence conversions there 
will be a scorecard approach to the different facets of 
promoting broad-based socio-economic empowerment 
in the mining industry. This scorecard approach would 
recognise commitments of the stakeholders at the levels 
of ownership, management, employment equity, human 
resource development, procurement and bene?ciation. 
These commitments have been spelt out in sections 4.1 to 
4.9 above. 
The HDSA participation required to achieve conversion 
within the ?ve-year period on a company speci?c basis 
will be speci?ed in the score-card, hereto attached as 
Annexure A. 
4.12 Financing Mechanism
The industry agrees to assist HDSA companies in securing 
?nance to fund participation in an amount of R100 billion 
within the ?rst 5 years. Participants agree that beyond the 
R100 billion-industry commitment and in pursuance of the 
26 per cent target, on a willing seller ? willing buyer basis, at 
fair market value, where the mining companies are not at 
risk, HDSA participation will be increased.
4.13 Regulatory framework and industry 
agreement
Government?s regulatory framework and industry 
agreements shall strive to facilitate the objectives of this 
Charter.
4.14 Consultation, monitoring, evaluation 
and reporting
It is recognised that the achievement of the objectives set 
out herein entails an ongoing process.
Companies undertake to report on an annual basis their 
progress towards achieving their commitments, with these 
annual reports veri?ed by their external auditors. A review 
mechanism will be established which again provides 
?exibility to the company commitments.
Parties hereto agree to participate in annual forums for the 
following purposes:
? Monitoring progress in the implementation of plans;
? Developing new strategies as needs are identi?ed;
? Ongoing government/industry interaction in respect 
of these objectives;
? Developing strategies for intervention where hurdles 
are encountered;
? Exchanging experiences, problems and creative 
solutions;
? Arriving at joint decisions;
? Reviewing this Charter if required.