LHDA botches lease for mining company

MOSA MAOENG

MASERU – The Portfolio Committee on Natural Resources, Tourism, and Land Cluster has sought legal advice to clarify the Ministry of Mining’s authority to issue a mining lease to Refeela Holdings between 2012 and 2015. This comes amidst a land dispute involving Refeela Holdings and the Lesotho Highlands Development Authority (LHDA). There are conflicting legal notices from 2012 stating LHDA’s ownership of the land intended for the Polihali Dam as part of the Lesotho Highlands Water Project Phase II (LHWP II).

Refeela Holdings, a mining company, was granted a lease in 2015 to operate a quarry in Polihali, an area subsequently allocated to the LHDA for the water project. The overlap came to light during a committee session on Tuesday this week, concluding with a decision to defer a ruling pending further legal analysis. Mohapi Khofu, the Chief Executive Officer (CEO) of Refeela Holdings, emphasised in a recent interview his company’s entitlement to compensation from LHDA.

He noted that the committee said they are yet to seek legal opinion to interpret the 2012 and 2015 legal notices before they can make a ruling. The Ministry of Mines declared that its authority to issue a lease to Refeela Holdings derives from the 2005 Act, which supersedes prior legislation. Between 2012 and 2015, Khofu was granted a license to commence work by the mining ministry. He clarified that the committee is not questioning the law itself but the ministry’s authority to have issued the license.

“What Refeela needs is compensation from the LHDA, which does not oppose compensating but seeks clarity on the next steps, given that the area was already designated in 2012 while our license was issued,” Khofu explained. “LHDA has already built a dam where we were supposed to work. The 2012 legal notice functions more like an announcement since it is not tangible. The committee has yet to make a ruling,” he said.

Meanwhile, Moeketsi Motšoane, Chairperson of the Natural Resources Cluster, highlighted that a significant issue is the 2012 declaration by then Minister of Local Government, Pontšo Sekatle, which earmarked the area for the Polihali dam development—precisely where the Ministry of Mines later issued a mining lease. He also referred to a subsequent 2015 legal notice by the same minister, adding to the regulatory complexity.

He said the main concern of the committee pertains to the Ministry of Mines reviewing the laws that enabled it to grant Refeela Holdings a mining license in the same area as the LHDA, despite a pre-existing 2012 declaration. In response to questions about the Ministry’s authority to issue such licenses, Mathalea Lerotholi, the Director of Legal Affairs at the Ministry of Natural Resources, explained that her power is derived from the Mines and Minerals Act of 2005. This Act authorises the Ministry to issue mining licenses nationwide.

Lerotholi said the legal hierarchy mandates that all Acts align with the Constitution of Lesotho. “The 2012 declaration was made by the Minister of Local Government, based on the land required for the project. This declaration did not prevent the Ministry from issuing mining licenses in the same area. Consequently, licenses were granted to all applicants, and local residents were permitted to exercise their rights,” she explained.

“In 2015, the Local Government Ministry issued another legal notice that restricted its powers in the same area. I am unsure why this 2015 declaration was necessary, given that the area was already secured through the 2012 declaration,” she added.

The LHDA is the implementing agency for the Lesotho Highlands Water Project (LHWP). Phase II of the project involves constructing major structures, including the Polihali Dam, a water transfer tunnel, and associated access roads, bridges, and other infrastructure. According to the LHDA, implementing Phase II will require acquiring at least 5,000 hectares of land.