Are our traditional communities with mineral resources protected by the law?
South Africa comprises of a significant number of communities that carry sacred cultural connections to the land in which they have been inhabiting for centuries. It is crucial for such communities to know that their informal rights to the land are recognized in the eyes of the law.
Shortly after the end of apartheid, the Interim Protection of Informal Land Rights Act, No 31 of 1996 (IPILRA) was, among other Acts, introduced as a temporary measure to the transformation of our country. Section 2(1) of the IPILRA provides that “no person may be deprived of any informal rights to land without his or her consent”. However, on the other hand, section 10 of the Mineral and Petroleum Resources Development Act, No 28 of 2002 (MPRDA) merely mentions the requirement for a consultation with the communities that may be affected by a possible move as a result of a proposed mining in the area.
Under the circumstances, the question is therefore whether a consultation, in terms of the MPRDA, will suffice or whether an affected community must consent, in terms of the IPILRA before a mining operation can commence.
These two provisions set out in the Acts mentioned above were argued in Baleni and Others v Minister of Mineral Resources and Others Case No 73768/2016 [2018] ZAGPPHC 829. This case involved an Australian mining company called Transworld Energy and Mineral Resources (SA) Pty Ltd (TEM) that wanted to start mining at an area called Umgungundlovu, inhabited by a community as defined in the IPILRA. TEM wanted the members of the community to relocate in order for the proposed mining to proceed and had believed that they had fulfilled the requirements needed (including consultation) in terms of the MPRDA. However, the community relied on the provisions of the IPILRA, demanding TEM to seek consent for the proposed mining.
The interpretation from the Pretoria High Court was essential in shedding light as to which party in the matter could decide whether or not the mining activity could proceed in Umgungundlovu. The court outlined that the purpose of the MPRDA is to promote a fair access to the country’s minerals to its citizens and the IPILRA aims to shield communities that have strong cultural connections to their land and those who have suffered in the hands of past discrimination. The Constitutional Court in Maledu and Others v Itereleng Bakgatla Mineral Resources Pty Ltd and Another [2018] ZACC 41, further stated that the MPRDA and the IPILRA should be interpreted together harmoniously in conjunction with the Constitution as it aims to rectify the racial discrimination imposed in the hands of the law. Furthermore, the court precedently provided that consent from the communities is a requirement.
The Pretoria High Court handed down Judgement on 22 November 2018, in favour of the Umgungundlovu community and it was ordered that the Minister of Mineral Resources must obtain consent from the community before TEM may be granted mining rights in terms of the MPRDA. Resultantly, consultation in this regard will not suffice.
This is a step in the right direction as it certainly fulfils the purpose of the Constitution in channeling progressive transformation in South Africa and this case, confirms the legal position of the law in protecting the informal rights of communities.
Belgrado Khoza
Candidate Attorney
Mining