THE BAT­TLE FOR INGULA

Eskom is fight­ing to get a Free State mu­nic­i­pal­ity to pay R3bn owed for elec­tric­ity, and is also in­volved in a strug­gle to pro­tect an im­por­tant wet­land

Financial Mail - - IN GOOD FAITH - @carmel­rickard

Say “Eskom” and “Har­ri­smith” and most read­ers would in­stantly add the word “trou­ble”. Af­ter all, the R3bn debt owed by the Har­ri­smith mu­nic­i­pal­ity of Ma­luti-a-pho­fung to Eskom is the high­est in SA.

Eskom is about to launch a se­ries of ma­jor power out­ages to force pay­ment by the mu­nic­i­pal­ity, and there is also on­go­ing le­gal ac­tion against Eskom by Har­ri­smith busi­nesses to test whether other arms of govern­ment share re­spon­si­bil­ity for re­solv­ing the tect the wet­land and its crea­tures, while build­ing a now fully com­mis­sioned wa­ter-based elec­tric­ity stor­age project, Eskom’s third hy­dro-pumped stor­age scheme, in the area. As part of the project, Eskom has been re­ha­bil­i­tat­ing the moist, high-al­ti­tude grass­lands to cre­ate “an in­ter­na­tion­ally renowned sus­tain­able na­ture re­serve” sur­rounded by well-run farm­lands.

Against this back­drop, re­cent lit­i­ga­tion in the land claims court takes on spe­cial sig­nif­i­cance.

It was brought by Eskom against 26 mem­bers of the ex­tended Mkhwanazi fam­ily group, liv­ing and graz­ing their cat­tle and other an­i­mals on the edge of the wet­land.

As part of the wider Ingula de­vel­op­ment, Eskom con­cluded a court-sanc­tioned ar­range­ment for the Mkhwanazi fam­i­lies to move from the farm in Har­ri­smith where they were liv­ing, to a 300 ha farm, Mag­gies Deel, do­nated to the ex­tended fam­ily by Eskom via a trust. Dur­ing the pre­lim­i­nary dis­cus­sions about the deal, agri­cul­tural ex­perts es­tab­lished that the land could carry a max­i­mum of fewer than 90 “an­i­mal units”, and ac­cord­ing to Eskom’s le­gal team, the Mkhwanazis had un­der­taken to com­ply with this limit. Eskom then spent about R3.5m on the re­lo­ca­tion and a fur­ther R500,000 to put up a perime­ter fence, and the fam­ily moved across about a year ago.

The prob­lem is that the Mkhwanazis are now over­graz­ing the farm, stock­ing it at about two and a half times its ca­pac­ity, and re­fus­ing to re­duce the num­ber of an­i­mals. Eskom com­plains that the cat­tle are also leav­ing the farm — de­spite the perime­ter fences — to graze ar­eas in­clud­ing ad­join­ing farms be­long­ing to other farm­ers as well as the crit­i­cal Ingula wet­land area.

Harm­ing the wet­land

Eskom’s court papers de­scribed the wet­land’s “global con­ser­va­tion sig­nif­i­cance” and said the Mkhwanazis’ live­stock, al­lowed to roam beyond their own fences, are caus­ing “ir­repara­ble harm”.

While lawyers for the Mkhwanazis ar­gued that the fam­ily had not been told about the strict lim­its on the an­i­mals that could be grazed, the court re­jected this, find­ing that the in­for­ma­tion had been spelt out in doc­u­ments that were part of prior ne­go­ti­a­tions.

The court has now is­sued an or­der that the Mkhwanazis have to re­duce the num­ber of an­i­mals on the land, to con­form with the lim­its set, and re­move the ex­cess an­i­mals within one month. Af­ter that, any over the limit will be im­pounded. They must also pre­vent their re­main­ing an­i­mals from graz­ing out­side their own perime­ter fences. Any of their an­i­mals found in the Ingula wet­land, or on neigh­bour­ing farms, will be re­moved, im­pounded and sold.

Whether last week’s tough ac­tion to pro­tect the Ingula area will re­solve this par­tic­u­lar bat­tle it is too early to tell. But clearly Eskom is de­ter­mined that what­ever hap­pens on its R3bn elec­tric­ity debt dis­pute, it will not lose the bat­tle over the in­tegrity of Ingula.

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