Matiisetso Mosala
There was much pomp and circumstance on 23 May around Lesotho’s King Letsie III and South African President Cyril Ramaphosa as they officiated the sod-turning that marked the start of the Lesotho Highlands Water Project’s second phase.
The fanfare highlighted how this second phase, which includes the 9.2 billion Maloti (US$512 million) Polihali Dam’s Transfer Tunnel and the 7.68 million Maloti (US$425) dam wall, will benefit both countries. Protestors tried to tell the other side of the story and demand answers to thorny questions about compensation for communities who have given up their homes and livelihoods for the project. But, they were swiftly moved away before dignitaries could be embarrassed.
Glowing speeches made no mention of more than 30,000 Basotho who were relocated off their crop and grazing land to make way for the first phase of the project which included the construction of the Katse and Mohale dams. During the construction of the Katse and Mohale dams, 644 households were resettled with the promise of compensation for the loss of their homes and livelihoods.
These people have received some compensation over the years as the courts have forced the managing agency; Lesotho Highlands Development Authority (LHDA) to pay out as required by the treaty signed between South Africa and Lesotho in 1986 before the LWHP started. Two decades after the first phase of the LWHP was complete, these communities are still waiting for their full compensation they were supposed to receive two decades ago.
The LHDA, has acknowledged in writing that it still owes these communities over 1 million maloti but has been accused of finding excuses and stalling to delay making payment.
While communities who will be affected by the Polihali construction are concerned that they will not receive their rightful compensation, Khabang Lejone Multipurpose Cooperative which represents 380 members that live in the vicinity of the Katse dam in the Ha Lejone [Phase I] area are still fighting for their full compensation. The members have received a small amount of the money that they are owed. While they are demanding the rest of it with interest, the LHDA acknowledges that over a million Maloti is still owed to these communities but has not paid.
So how much money is at stake?
The MNN Centre for Investigative Journalism can confirm that the LHDA was supposed to have already paid M 1 265 307 in compensation to Khabang Lejone for the years between 2015 to 2020.
In January 2020, Khabang Lejone’s Attorneys sent a letter of demand to LHDA asking that the full compensation amount [M1, 317, 450] be paid to the cooperative within 14 days of receipt of the letter. In the letter, the attorneys state that the amount payable to Khabang Lejone was M2, 157, 677.97 and that the LHDA has only paid 840, 227 .93, leaving M1, 317, 450 to be outstanding.
In February, LHDA’s Chief Executive Tente Tente acknowledged this debt in a letter to Khabang Lejone attorneys. Tente set out how the LHDA owed an “overall entitlement due to Khabang Lejone covering the years [2015/2016; 2016/17; 2017/18, 2018/19 as well as 2019/20] is M1, 265, 307. 80”.
MNN asked Tente why this has not been paid. He told MNN that Khabang Lejone’s committee has not been able to provide clear financial reports for the payments that were previously made to it, amounting to M840,227.93. LHDA claimed that Khabang Lejone had not properly accounted for the funds it received in the past, therefore it had no way of knowing that the funds were used for the intended purpose.
The LHDA wanted the cooperative to show how it has spent money previously disbursed on developmental projects or programmes. In the case that it had not spent the money, it had to present proof that previously disbursed money had been invested in an interest-generating account along with the financial position of the cooperative as at that financial year. Court papers filed by the cooperative state all these conditions have been met.
Khabang Lejone Chairperson, TŠeliso Letuka, told MNN that the LHDA continually tries to find reasons not to pay. For example, in 2020 the LHDA said that payment could not be paid until a dispute between the Khabang Lejone committee and some of its members had been resolved.
Letuka stresses that the disputes were resolved and adds: “Every time we communicate with the LHDA they always find something new to hold on to and make it an excuse not to pay up.” While the Seinoli Legal Centre’s Lerato Rabatho confirms that the LHDA has admitted that it owes the communities compensation, the LHDA’s decision to withhold compensation has hit ordinary people’s lives hard as they had been unable to start projects and income-generating businesses.
Seinoli is a legal trust that leverages the rule of law as a tool for protecting, restoring, and enhancing livelihoods of local communities and focuses much of its work at providing communities affected by large development projects with access to legal representation.
Letuka affirmed that members of Khabang Lejone are destitute and unable to pursue any developmental projects since 2011 as the cooperative’s funds had tried-up.
In the 2015 case that the Khanag Lejone brought against the LHDA, the High Court ordered the agency to pay beneficiaries as required by the treaty initiating the LWHP. After considerable delay, the LHDA complied with part of the court order by paying one-third of the compensation owed for the years 2003 to 2012. The balance of the compensation due for this period was paid in late 2020. Payment of the annual amount owing for the years 2013 to date, has not yet been paid, apparently because of a change in payment policy adopted unilaterally by the LHDA.
While a paper by the University of Botswana argues that it is not legal for the LHDA to make “arbitrary changes” in policy and the rights of the affected communities entitled to compensation, some communities did sign agreements with the LHDA that agree individual payments would replace payments for infrastructure projects. These communities feel that they were bullied into signing the agreement believing they had no choice.
Seinoli’s Advocate Rabatho agrees with the research paper stating that: “This is against the 1986 Treaty between Lesotho and South Africa, the Constitution of Lesotho and the LHDA Order”.
LHDA’s Tente told MNN that they are not in breach of the Treaty because a new Communal Compensation Disbursement Strategy was introduced in 2014 which states that communities will no longer receive funds into their accounts. The LHDA claims that it wants to protect communities from potential misuse of communal funds by cooperatives committees, so instead “the communities have to identify a development project that will be implemented by a relevant third party, once that is done, payments are made from the communal compensation fund for that community, directly to the implementers of the development project,” said Tente.
Given the Khabang Lejone co-operative’s successes against LHDA, 17 other cooperative societies affected by phase I joined forces with Khabang Lejone around 2007 in the hope to secure payment from the agency. Seinoli however told MNN that it could not provide legal representation to these other 17 cooperatives due to limited resources and also because these cooperatives had agreements with the LHDA permitting the agency to use their compensation for capital projects like electricity grid expansion and roads.
This is in line with the LHDA’s controversial change in policy for compensation payouts. MNN learned in making the cooperatives sign agreements to relinquish rights to use their compensation money, the LHDA burdened impoverished communities affected by the LHWP with government’s responsibility.
Seinoli told MNN that the communities felt they were left with no other option but to sign off their rights to the LHDA which threatened it would no longer pay out money into the cooperatives’ accounts, so they accepted the new method of compensation disbursement.
When MNN asked the LHDA why this was the case, Tente said “in all cases relevant government departments, authorities and implementing bodies play a leading role in the implementation of those, with LHDA facilitating the necessary payments to service providers as directly needed”.
He claimed that “the urgency of the need for services in the communities is considered of highest priority by the communities themselves, and this is one of the ways that they elect to speed up availability of services through resources that they own as a community, which is their communal compensation fund”.
In October 2014 however, in one of LHDA’s supplementary affidavits, it categorically argued that it could not pay communal compensation to Khabang Lejone because it did not represent everybody entitled to communal compensation. Khabang Lejone represented 383 members, while the LHDA claimed there were 388 members entitled to compensation.
In March 2020, in a meeting with Seinoli Legal Centre—Khabang Lejone’s legal representation—the LHDA admitted owing the cooperative, but argues it only owes the outstanding compensation to the tune of M1, 265, 307.80. The cooperative disagrees, arguing that this total does not include interest on unpaid funds and inflation rates therefore should be M1 698 843.50.
Khabang Lejone warned in 2020 that it would institute legal action against the LHDA should it fail to pay. The cooperative further indicated that they intend to lodge formal complaints with the governments of Lesotho and South Africa that they, “…are breaching the terms of the Treaty on the Lesotho Highlands Water Project (LHWP) by failing to pay compensation to them and other similarly affected communities as and when it is due”. It is currently being developed.
Countless follow-ups
MNN has learned the LHDA has always delayed disbursement of communal compensation payments to affected communities for decades. In the past, MNN heard how several demands made by the cooperatives collectively and individually to the LHDA for payment of their compensation caused back and forth arguments for years before payments were made. In 2007, an officer of the LHDA Morake Rakhoba said in court papers that communal compensation money would be paid “no later than June 2007” indicating that annual interest rates were still being determined to be added to the payment.
The LHDA delayed and dragged the release of compensation to the members as long as it could, while Khabang Lejone incurred expenses to and from Katse following up on the payment due to them. In August 2010, the Ombudsman issued a report calling out the LHDA for being unreasonable in withholding payment due to the cooperative, even after compliance with necessary formalities. It recommended that LHDA pay the compensation to the cooperative within 9 months [by May 2011].
In January 2011, Makabiso Khobai, the secretary of the Maliba-Matšo Communal Assets executive committees [an umbrella body that brings together and represents all cooperatives of the Katse Dam affected communities] wrote to the LHDA inquiring how soon they would receive their unpaid communal compensation dating from 2003 to 2011. Khobai further indicated that the long delays were hindering the Maliba-Matšo community from carrying out its development plans. The committee was asking on behalf of Khabang Lejone and other cooperatives in Katse affected by Katse dam works. The LHDA had not responded to the committee in May 2011, prompting it to write a follow-up letter, this time requesting a meeting with LHDA management.
LHDA’s Tente told MNN that the LHDA has paid all that was due as backlog to Khabang Lejone as per the Ombudsman’s recommendation and the Court Order of 2015.
“The first batch of payment that was due to the Ha Lejone community, from 2010/11/12 claims, was paid in full in two parts. 1/3rd of the total in 2015, and 2/3rds in 2019. This was in compliance with an order of payment issued in 2015,” Tente explained.
According to court papers filed, Khabang Lejone has pursued several developmental projects in villages in Ha-Lejone, including connection of electricity in every household of the members of the cooperative, the building of rental flats in Ha-Lejone, buying blankets for the elderly, disabled and sickly as well as soccer boots for the local youth soccer team. The cooperative also ran a passive income scheme, lending money to members at an interest rate, according to court papers it filed, in line with conditions that LHDA set for the release of communal compensation at the time.
LHDA chariot moves on while dogs bark
When MNN made enquiries into why communities affected from the first phase of the LHWP still have not received their full compensation, Tente said “there is no connection between Phase II and Phase I as each part of the project is independent”.
In spite of unsettled Phase I disputes with communities, Phase II and the construction of the Polihali dam construction chariot moves on full throttle. This second phase is billed as a project with significant financial benefit to Lesotho, but it carries devastating social implications for affected communities, and the LHDA continues to operate with impunity.
On 23 May 2023, His Majesty King Letsie III joined by his South African Counterpart President of South Africa Cyril Ramaphosa and Lesotho’s Prime Minister Samuel Matekane among other dignitaries led the sod-turning of major works of Phase II of the LHWP in the town of Malingoaneng in the Mokhotlong district. During this binational celebration filled with pomp and funfare affected communities’ members staged a peaceful protest complaining about compensation.
One of the placards held by the protestors gathered on the sidelines of the celebration read: “LHDA give us our communal compensation”.
MNN’s sources witnessed as uniformed security officers confiscated placards held by the community members before His Majesty and President Ramaphosa arrived at the celebration. Following the celebration, Southern African Human Rights Defenders Network (Southern Defenders) and Seinoli Legal Centre released a joint statement on 31 May 2023, condemning the acts of harassment and intimidation against Human Rights Defenders by forceful and unlawful confiscation of advocacy placards.
“The placards only contained messages that raised the negative effects of the project on the community which include failure to provide adequate compensation. These actions are a clear violation of the rights of HRDs to freedom of expression, assembly, and peaceful protest,” reads the statement.
In 2018, Mokhotlong communities’ efforts to take the LHDA to task over compensation, did not move the LHDA. LHDA prides itself in that it carries the responsibility to protect communities’ wellbeing and ensure that their livelihoods and standard of living are not left worse off, but rather restored, and better than before the implementation of the project. However, communities argue this responsibility has been abdicated and neglected, contrary to the treaty and promises made prior to implementation.
Explaining how Phase II implementation is underway but compensation payments to affected communities in Phase I are still outstanding, Tente said Phase II of the project is governed by the Phase II Agreement, and all activity under Phase II happens independent of the processes of Phase I for the most part.
Tente stated “there are crucial learnings and insights that the project has extracted from Phase I, which have been incorporated into new strategies and processes under Phase II, this is an area that we are proud of, and we firmly believe that progress made under Phase II, can and should proceed, despite backlog, challenges, and the operational management and maintenance of Phase I activities.”
