Manus Booysen, partner and mining expert, Webber Wentzel
The minister of mineral resources is correct to appeal the recent judgment in the Xolobeni case which prevents him from granting a mining right without the permission of the community. The judgment undermines the current legislative structure around mining rights and has the potential to deter further investment.
A prolonged and sometimes violent dispute within the Mpondo community around Xolobeni on the East Coast over the application by Transworld Energy and Mineral Resources to mine titanium-rich sands culminated in a judgment delivered in November.
One faction of the community was in favour of the mine because of the economic benefits and the other was opposed because it would affect the traditional way of life and potential for tourism. Those opposed to it took the matter to court.
The judgment by AC Basson, J draws on two pieces of legislation.
The first is the Mineral and Petroleum Resources Development Act (MPRDA). The MPRDA was a radical piece of legislation, enacted to redress the wrongs of the past, which moved the right to mine from property law, which allowed the right to be bought and sold separately from the land, to administrative law. Now the minister grants the right to mine and it is granted only if certain requirements are satisfied, including that an applicant must consult with all affected parties. The final decision lies with the minister.
The second relevant law is the Interim Protection of Informal Land Rights Act (IPILRA), which protects those with informal rights until legislation is enacted to give them full title to the land. It provides that people may not be deprived of the right to occupy without their written consent.
The distinction between “consultation” and “consent” is important, Judge Basson ruled in granting the Xolobeni application, because the mining right would deprive the community of its use of the land. Traditional communities enjoy special protection and the status of customary law is recognised in the Constitution. The community’s consent would have to be granted on the basis of customary law – in this case, a consensus decision – rather than common law, which requires only a majority vote.
The Constitutional Court recently ruled on a similar matter, Maledu vs Itereleng Bakgatla Mineral Resources, where 37 members of a traditional community appealed their eviction from their farms for mining. The mining company had secured consent to the granting of the right from the minister who held the land in a trust and the traditional council but those living on the land were not consulted, as IPILRA and the MPRDA required. The Constitutional Court ruled they could not be evicted because they had not been consulted and consented, nor were mechanisms for resolving disputes under Section 54 of the MPRDA exhausted.
The Constitutional Court’s judgment requiring the consent of the occupiers has two sides. The first is the consent of the traditional authority as the lawful representative of the community and the second is the consent of those directly affected. It does not require the consent of every single occupier. There is a provision for majority consent under common law. This is a legally sound judgment.
However, the Xolobeni judgment is different because it means the minister cannot grant a mining right in a community area.
On 12 December, minister Gwede Mantashe told media that he would appeal the Xolobeni ruling because “when the judgement says you must get full consent of communities it means the state no longer has the authority to issue licences. It is communities that must issue licences. If we agree to that there is going to be chaos.”
If the Xolobeni judgment was upheld, it would become practically impossible to get mining rights on traditional land because of the numbers of people affected.
Elevating customary law above common law takes the legal system back to the point where an individual or group of individuals can hold the rest of society to ransom. Law has moved on since then, to the point where if the state needs land, it can expropriate an individual landowner’s property against his consent, as long as the landowner is paid a market-related price for it.
Manus Booysen is a partner and mining sector expert at Webber Wentzel