Maverick Citizen Eastern Cape

Game-changing Xolobeni judgment orders applications for mining licences to be made public

By Estelle Ellis 14 September 2020

Xolobeni residents and environmental activists at the North Gauteng High Court on 24 April 2018. (Photo: Flickr / Granatarok)

In a ground-breaking judgment, the North-Gauteng High Court has ruled that affected communities have a right to see applications for mining licences — cutting out miles of red tape that environmentalists, activists and civil society organisations had to wade through in the past to gain access to these details, often with limited success.

A jubilant attorney acting for an Eastern Cape community that fought and defeated a mining giant, on Monday 14 September described a ruling by the North Gauteng High Court that those affected by mining operations had a right to see applications for licences as game-changing and great progress in levelling the playing field.

The attorney for the Umgungundlovu community, Johan Lorenzen, said the judgment went a long way towards balancing the power between mining companies and affected communities.

“After years of the Department of Mineral Resources failing to provide access to mining right applications or forcing communities to use a dysfunctional Promotion of Access to Information Act process, our clients are ecstatic at today’s victory that all communities are entitled to applications for mining rights over their land.

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“As the court held: ‘Meaningful consultation entails discussion of ideas on an equal footing, considering the advantages and disadvantages of each course and making concessions where necessary.’ ” Communities negotiating with companies would face “a more level playing field”, Lorenzen said.

Thandeka Kathi, an attorney at the Centre for Applied Legal Studies based at Wits University, said the judgment was a “game-changer for mining-affected communities in South Africa”. The centre acted as a friend of the court in the application.

“Communities should not have to be sent from pillar to post when trying to access information they need about the projects that affect them — and this judgment recognises that. It means community members will by default have access to the information to participate fully in discussions with mining companies and the state in their quest to realise other constitutional rights,” Kathi said.

The Centre for Applied Legal Studies had presented the court with evidence gathered by both the Centre for Environmental Rights and Corruption Watch showing the low success rates of communities trying to gain access to information by using the Promotion of Access to Information Act.

The court heard that research done by the Centre for Environmental Rights showed that between 2010 and 2012, 20 of 41 applications for access to information were refused by the Department of Mineral Resources, with 16 being deemed as refused because they never received an answer. Only seven were granted with adequate records being provided as 14 had been granted, but with no documents provided.

According to the research, inadequate communication, the inappropriate use of generic letters to refuse applications and a high burden being placed on those seeking access to information were rife in the department.

The department also took, on average, 117 days to respond to a request.

The application was brought in February by the Umgungundlovu community who asked for access to mining rights applications of operations that may impact on them. The community discovered in 2015 that Transworld Energy and Mineral Resources had applied for the rights to mine titanium in the Xolobeni area of the Eastern Cape where they lived and worked.

Residents expressed their concern in papers before the court over the impact of the proposed mine on their way of life. After being refused access to the mining rights application by the company and the government, they asked for the North Gauteng High Court’s intervention.

They were eventually provided with a redacted version of the application that was used to support a ground-breaking objection to mining in the area, that was subsequently upheld by the Constitutional Court.

Community leaders, led by Duduzeli Baleni, the iNkosana and head of the Umgungundlovu community council, which was established in terms of customary law, brought the application.

Nonhle Mbuthuma, a spokesperson for the Amadiba Crisis Committee, the organisation created to fight mining development in the area, described in February 2020 the events that led to the application as follows:

“In March 2015, the Australian mining company MRC’s South African subsidiary TEM filed a new application to do open cast mining on the coast in Xolobeni. We demanded to see the application. They refused. Our lawyers then started a court case to force TEM to give the mining application to the community.

“The news arrived today when we were holding a meeting discussing our community issues. It just changed our mood. We were so happy. Dealing with companies is so difficult for us. They only want to tell us what they are going to do but they don’t want to give us papers. If you have paper you can hold them accountable. They promise schools and clinics and roads but once they are finished you can’t force them to do those things. That is why we say this victory of today is not small. It is big for us and for all other communities. Now we can know the plan. If they want to promise jobs for all we can see their plan. We can know how big and how deep and how they are going to fix the damage. We need to know that we are safe or not safe,” she said.

The Department of Minerals Resources did not oppose the community’s application and said it would abide by the ruling of the court.

“After a year, TEM sent over a redacted application anyway; a document with several blank pages. They did not want the court case and now they asked us to withdraw. We declined. We want all affected communities to see information about mining operations that will impact on them.

“In 2018 the court gave the right of our Umgungundlovu community to give free prior informed consent to mining on our land. This gave us and other rural communities the Right to Say No to mining. Must not ‘informed’ include the right to see the mining application made by a company?”

The Centre for Applied Legal Studies supported the argument that mining rights applications should be public documents.

In her judgment, Judge Tintswalo Makhubele said the Umgungundlovu community was provided with only a copy of the mining right application, excluding confidential information, after they began legal proceedings against Transworld Energy and Mineral Resources.

The company argued in court that the relief sought by the community was “academic” as it had already provided the information requested. Its legal team argued that the community did not have a right to the documents.

Makhubele, however, found that the community had presented a case for her to issue an order that “interested and affected parties as contemplated by the Mineral and Petroleum Resources Development Act are entitled on request to the relevant Regional Manager of the Department of Mineral Resources (“the Department”), to be furnished with a copy of an application for a mining right subject to the right of the applicant and/or the Department to redact financially sensitive aspects of the application.”

The judge said the evidence placed before her in court papers presented a clear case about the limitations of the Promotion of Access to Information Act as an instrument to enforce a community’s rights, and she had been convinced that this was not a viable option to the community.

Makhubele said statistics presented to her by the Centre for Applied Legal Studies confirmed the community’s “anxieties and fostered their stance that their rights cannot be realised by following the processes prescribed by PAIA”.

The Department of Minerals Resources did not oppose the community’s application and said it would abide by the ruling of the court.

Makhubele said that there was no apparent reason for the continued opposition mounted by Transworld Energy and Mineral Resources and ordered it to pay the legal costs of the application. DM/MC

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  • This is a sound judgement. Now effected communities are on a more equal footing with mining companies. Really it is wrong that the owners/occupiers of land should have lost their rights to the sub-surface contents of the land. That was not progress.

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