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Xolobeni: Protecting vulnerable people’s land against mineral rights grabs

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Dr Mpho Tsepiso Tlale is a postdoctoral research fellow at the South Africa Research Chair in Property Law at Stellenbosch University.

Land grabs by mining companies that dispossess communities of their land and mineral rights are still a fairly murky legal issue, despite the 2018 North Gauteng High Court ruling in favour of the Eastern Cape’s Xolobeni community.

In recent weeks, there have been a number of news reports about people occupying land in various parts of South Africa. This is, of course, nothing new. We’ve had land grabs before, and I believe these will continue as long as many South Africans lack access to land or secure tenure over it.

Under apartheid, black people were prevented from owning or occupying land in certain parts of South Africa. The Constitution, followed by other pieces of legislation, essentially sought to remedy these injustices.

The advent of constitutional democracy introduced a new era in which black South Africans could occupy any land in the country. In terms of section 25(9) of the Constitution, Parliament is mandated to enact legislation that gives effect to section 25(6), which in turn provides that any person or community whose tenure in land is legally insecure due to apartheid laws and practices, is entitled either to tenure which is legally secure, or to comparable redress.

The South African customary land rights are currently informal. Thus, in the absence of permanent legislation to safeguard customary landholding, the Interim Protection of Informal Land Rights Act (IPILRA) fills this gap. However, the IPILRA is merely a three-page piece of legislation that arguably falls short of protecting the land rights of over 17 million South Africans.

The IPILRA’s ability to protect its beneficiaries has been tested over the years; more recently in the November 2018 case of Baleni and others v Minister of Mineral Resources and others. In this case, the issue was whether mineral rights applicants could be awarded licences without the consent of the Xolobeni community in Umgungundlovu in the Eastern Cape, whose rights to occupy the land are protected under IPILRA.

In contrast, the mining legislation, namely the Minerals and Petroleum Resources Development Act (MPRDA), only requires that the land occupiers be consulted. Therefore, these conflicting levels of engagement were the core issue before the North Gauteng High Court.

In coming to a decision, Judge Annali Basson particularly emphasised that the Department of Mineral Resources (DMR), which is responsible for granting mineral licences, lacked authority to grant mineral rights unless the relevant provisions of the IPILRA had been complied with. 

In balancing the economic rights of mining against land tenure security, the courts have decided in favour of the latter. Notwithstanding, the DMR will rightfully be held liable for its failure to act as a true custodian of mineral rights.

The court said that, in terms of section 2(1) of the IPILRA, the DMR was obliged to obtain full and informed consent from the community before granting any mineral rights, since failure to do so would deprive the community of their property rights. 

Although consent (in terms of the IPILRA) and consultation (under the MPRDA) are not mutually exclusive, the court rightfully ruled in favour of the community, i.e. allowing the community to consent before mining ensued on their land.

There are, however, two issues about this judgment that should be clarified.

First, the court erred in assuming that the DMR is a party to the consultation and consent proceedings. The state, through the DMR, is merely the custodian of mineral and petroleum resources “… on behalf of the nation” (section 3 of MPRDA), and is therefore not a party to negotiations or agreements that take place. It’s usually the landowners or occupiers, as well as the mineral or petroleum applicants, that are involved. This means the DMR is a regulatory body responsible for ensuring that the legislative requirements have been complied with, and thereafter granting or refusing to award mineral and petroleum licences.

Second, although the court deals with what is presented before it, over and above the community’s argument of loss or deprivation of property (in terms of both section 2(1) of the IPILRA and 25(1) of the Constitution), the right to administrative justice under section 33(1) of the Constitution could have been claimed successfully. Section 33(1) forms the constitutional basis against which the Promotion of Administrative Justice Act (PAJA) was enacted.

In terms of section 1(a) of PAJA, administrative action is defined as “… any decision taken or failure to take a decision by an organ of state while exercising a power or performing a public function authorised by any legislation”. This decision must adversely affect the rights of any person and must have a direct and external legal effect to qualify as an “administrative decision”. Therefore, granting a mineral right licence without any kind of proof of consultation, had the potential of interfering with the lives and livelihoods of the Xolobeni community and could, as a result, amount to arbitrary deprivation of property.

One of our Constitution’s primary roles is to redress the injustices of a past that left black people without land and secure tenure over it. The implementation of this objective is facilitated by various pieces of legislation that seek to secure the land tenure of previously dispossessed people. Nonetheless, the MPRDA somewhat undermines the IPILRA by failing to ensure that legislative instruments put in place to protect vulnerable groups, such as customary land occupiers, are engaged meaningfully before mineral rights are granted.

Although the state (DMR) is said to hold mineral rights on behalf of and for the benefit of all South Africans, it exacerbates the already insecure land tenure rights of customary communities by enabling mineral right applicants to bypass the consultation requirements of the MPRDA. 

In balancing the economic rights of mining against land tenure security, the courts have decided in favour of the latter. Notwithstanding, the DMR will rightfully be held liable for its failure to act as a true custodian of mineral rights.

It is negligent to award mineral rights without proof that the requirements have been complied with, and this (in)action leads to liability for not only the loss of property rights, but also administrative rights. DM

This is an abridged version of a paper by Tlale recently published in the Potchefstroom Electronic Law Journal. 

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