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The Full and Informed Consent of Informal Land Right Holders is Required Prior to the Grant of a Mining Right

Fasken
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On 22 November 2018, the High Court, Pretoria (the "Court") handed down its judgment in the matter between Baleni and Others v Minister of Mineral Resources and Others (73768/2016) [2018] ZAGPPHC 829.

 

Background

 

The judgment comes after the following sequence of events:

 

- The applicants are informal land rights holders as contemplated in the Interim Protection of Informal Rights to Land Act 31 of 1996 ("IPILRA")  and reside in an area called Umgungundlovu, which is an area within Xolobeni. This area has approximately 70 to 75 households comprising more than 600 individuals. These individuals and their ancestors have lived on this land according to their customs for centuries. 

 

- One of the respondents is Transworld Energy and Mineral Resources (SA) Proprietary Limited ("TEM") which applied for a mining right in respect of a portion of the Xolobeni area. 

 

- Land, according to the applicant’s customary law, accrues to persons by virtue of them being members of the Umgungundlovu community; outsiders are subjected to robust assessment processes in order to preserve and protect the interests of the community. Further, decisions according to the customary law of the community typically do not take place on a majoritarian basis but on a higher degree of consensus. 

 

- A vast majority of the applicants live within or in close proximity of the proposed mining area. 

 

The applicants accordingly do not want TEM to mine on their ancestral land for the following reasons:

- the proposed mining area is an important resource and central to the livelihoods and subsistence of the applicants;

- they fear the disastrous social, economic and ecological consequences of mining;

- the proposed mining activities will not only bring about a physical displacement of their homes, but will lead to economic displacement of the community and bring about economic destruction of their cultural way of life;

- TEM has not made an effort to present a proposal to the community as to how they plan to mitigate the impacts of the proposed mining activities on the individual families and the community.  The community is accordingly not in a position to consent to mining on their land in the absence of this presentation and proposals to the community on how the adverse effects of the mining operations will be mitigated.

 

In light of the above, the applicants approached the High Court for an order amongst others:

 

- declaring that the Minister of Mineral Resources ("Minister")  lacks any lawful authority to grant a mining right in terms of section 23 of the Mineral and Petroleum Resources Development Act 28 of 2002  ("MPRDA") over land anywhere in the Republic occupied under a right to land in terms of any tribal, customary or indigenous law or practice of a tribe as defined in IPILRA, unless the provisions of IPILRA have been complied with;

- declaring that the Minister lacks any lawful authority to grant a mining right to TEM unless amongst others, the Minister, the Regional Manager and Director General for the Department of Mineral Resources have complied with the provisions of IPILRA;

- declaring that the Minister is required to obtain the full and informed consent of the applicants and their community, the Umgungundlovu community, as the holder of rights in land, prior to granting any right to TEM in terms of the MPRDA.

 

 

TEM and the Minister, opposed the requirement to obtain consent, on the basis that the MPRDA only provides for consultation and not consent, prior to the grant of a mining right.

 

Conversely, the applicants are of the view that TEM’s interpretation fails to appreciate the fundamental fact that communities, like the applicants are vulnerable and they their way of life is intrinsically linked to the land. Further that without free, prior and informed consent, communities are at real risk of losing not only their rights in their land, but their way of being.

 

In making their submissions, the applicants relied on the provisions of IPILRA, while the respondents relied on the provisions of the MPRDA in support of their contentions.

 

The Issues

 

In light of the above, the issue to be decided by the Court was whether the consent of the community is required in terms of IPILRA prior to the grant of a mining right in terms of the MPRDA; and accordingly whether the MPRDA supersedes IPILRA or whether it should be read alongside the provisions of IPILRA. IPILRA requires the informed consent of a community which has informal rights in land before the community may be deprived of such rights, whilst the MPRDA requires only that a community be consulted prior to the granting of a mining right.

 

In deciding on the issue, the Court considered amongst others, the provisions of IPILRA, and the provisions of the MPRDA.

 

Interim Protection of Informal Land Rights Act

 

IPILRA is intended for the  protection of informal rights to land, land held in terms of customary law and interests in land that were not adequately protected by the law because of racially discriminatory laws of the past. IPILRA was adopted to protect those who held insecure tenure because of the failure to recognise customary title and came into operation on 21 June 1996 to provide temporary protection until 31 December 1997, however, IPLIRA has been repeatedly extended in terms of section 5(2) of IPILRA and most recently until 31 December 2018.

 

Section 2(1) of the IPLRA provides that:

subject to the provisions of subsection (4), and the provisions of the Expropriation Act, 1975 (Act No. 63 of 1975), or any other law which provides for the expropriation of land or rights in land, no person may be deprived of any informal right to land without his or her consent.’

 

Section 2(3) of IPLIRA further provides that where land is held on a communal basis, a person may, subject to subsection 2(4), be deprived of such land or right in land in accordance with the custom and usage of that community.

 

Section 2(4) of IPILRA provides that the custom and usage of a community shall be deemed to include the principle that a decision to dispose of any such right may only be taken by a majority of the holders of such rights present or represented at a meeting convened for the purpose of considering such disposal and of which they have been given sufficient notice, and in which they have had a reasonable opportunity to participate.

 

Mineral and Petroleum Resources Development Act

 

Section 4(1) of the MPRDA provides that when interpreting a provision of the MPRDA, any reasonable interpretation which is consistent with the objects of the MPRDA must be preferred over any other interpretation which is inconsistent. In addition, section 4(2) provides that in so far as the common law is inconsistent with the MPRDA, the MPRDA prevails.

 

MPRDA vs IPILRA

 

Against the background of this matter, the Court held that the granting of a mining right amounts to “deprivation”, and accordingly that the consent requirement provided for in section 2(1) of IPILRA will be triggered.

 

The Court then turned to the status of IPILRA as against the MPRDA and held that while section 2(1) of IPILRA provides that the requirement for consent in the event of a deprivation, is made subject to the provisions of the Expropriation Act or any other law which provides for the expropriation of land or rights in land; the term “or any other law which provides for the expropriation of land or rights in land” is with regard to laws which deal with the expropriation of land, and the granting of a statutory mineral right under the MPRDA does not constitute expropriation[1].  Accordingly, the requirement of consent under section 2(1) of IPILRA, is not subjected to the MPRDA as the MPRDA does not constitute “law which provides for the expropriation of land”.

 

With regard to section 4(2) of the MPRDA, the Court held that although customary law enjoys equal constitutional status to common law, the MPRDA does not contain a similar provision in respect of customary law and therefore does not specifically subject customary law to the provisions of the MPRDA in the event of inconsistency with the MPRDA.

 

The Court held further that IPILRA and the MPRDA serve to protect different interests, in that the MPRDA serves to regulate the mining activities in South Africa, whereas IPILRA was enacted to provide for the temporary protection of certain rights to and interest in land which are not otherwise adequately protected by law (as customary law has in the past been marginalized and allowed to be alienated from the roots in the community). The Court  held that having regard to the overall purpose of the two acts, and given the status now afforded to customary law and in light of the interpretation of section 4(2) of the MPRDA, the MPRDA and IPILRA ought to operate alongside one another and ought to accordingly be read together.[2]

 

In addition, having regard to the protection granted to traditional communities in terms of IPILRA, the Court held that communities must be afforded broader protection in terms of IPILRA, than the protection afforded to common law owners (as contemplated in the MPRDA) when mining rights are considered by the Minister. The Court held that while the MPRDA applies, IPILRA, which imposes an obligation upon the Minister to obtain the consent of the community who hold land in terms of customary law, also applies. Granting this special protection is not in conflict with the provisions of the MPRDA and especially section 23(2A) where it is made clear that protecting community rights to land is part of the purpose of the MPRDA.

 

High Court Findings

 

In the circumstances, the Court found that the MPRDA and IPILRA should be read together and accordingly held that:

 

- the Minister lacks lawful authority to grant a mining right to TEM in terms of the MPRDA, unless amongst others, the Minister, the Regional Manager and Director General for the Department of Mineral Resources have complied with the provisions of IPILRA; and

- in terms of IPILRA, the Minister is obliged to obtain the full and informed consent of the applicants and the Umgungundlovu community as the holder of rights in land, prior to granting any mining right to TEM.

 

Effect of the Judgment

 

The effect of the judgment is that where an application for a mining right is made over land where a community has informal land rights, the Minister will be required to obtain the prior informed consent of the informal land right holders before granting the mining right. Therefore, the Minister of Mineral Resources does not have the authority to grant a mining right in the event that the full and informed consent of the informal land right holders has not been obtained in accordance with the prescripts of IPILRA.

 

In effect, the judgment empowers communities to refuse mining on their land. This power also extends to other communities under customary law.

 

The Department of Mineral Resources has reportedly indicated that it will appeal certain aspects of the judgment.

 

Authored by Lucas Moalusi, Godfrey Malesa, Mmaphuti Morolong and Selby Mathebula.



[1] This was held in the Constitutional Court in AGRI SA v Minister for Minerals and Energy 2013 (4) SA 1 (CC).

[2] This was also the position and fining in the recent Constitutional Court case of Maledu and Others v Itereleng Bakgatla Mineral Resources (Pty) Limited and Another [2018] ZACC 41.

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