A wealthy commercial farm owner is approached by a mining company that has been licensed by the state to mine on his land. The company approaches the farm owner to negotiate a surface lease. The farm owner employs a legal team, has his farmland and commercial operations valued and negotiates a lease consonant with the loss of revenue he would suffer as a consequence of the mining operation. Mining goes ahead, everybody wins, right?
Sure. But, while this may be the way things work for white people with secure land rights, this is not the reality for those most affected by mining in South Africa.
In fact, those bearing the brunt of the disruptive effects of mining are not wealthy white landowners, but black South Africans living on “communal” land in the former homelands, where poverty and unemployment are rife.
In a bizarre twist of fate, from the 1960s onwards large deposits of valuable minerals such as platinum, chrome, titanium and coal have been discovered in vast areas of the former homelands, in what are now Limpopo, North West, the Eastern Cape and KwaZulu-Natal.
A new mining boom erupted and powerful mining companies charged into these areas to set up shop, each scrambling to get their piece of the pie. These areas, underdeveloped as they are on the surface, are rich in mineral wealth.
Although mining companies have raked in the profits of these newfound riches, the communities who live there suffer the disruption without the reward. In South Africa, the state is the custodian of our nation’s mineral resources. It is, therefore, the Department of Mineral Resources, rather than the landowner, that awards mining licences.
However, having a mining licence does not give a company the unfettered right to use the surface land, so they enter into surface leases with the owner of the land upon which they intend to operate. These leases generally require the landowner to sign away their right to claim compensation under mining legislation. This means that the question of who owns that land, and the nature of their property rights, is crucial in the negotiation of surface leases and related mining deals.
Black people living in the former homelands have weak legal rights in the land they occupy as a result of apartheid. This continues to be the case, because Parliament has failed to establish a comprehensive legislative framework to give effect to their constitutional right to legally secure tenure. Instead, the tenure security of some 18 million people remains structurally vulnerable.
Section 25(6) of the constitution provides that “a person or community whose tenure of land is legally insecure as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to tenure which is legally secure or to comparable redress”. Section 25(9) enjoins Parliament to enact the legislation referred to in 25(6).
However, Parliament has as yet failed to give effect to this constitutional imperative. The only legislation that offers any protection to people living in the former homelands is the Interim Protection of Informal Land Rights Act, 1996 (Ipilra). Ipilra offers limited security of tenure to vulnerable people on communal land by providing that “no person may be deprived of any informal right to land without his or her consent” and that adequate consultation must precede a decision to dispose of any such right.
But Ipilra was enacted merely as an interim measure, as the name implies. It was to be a temporary law to protect people’s informal land rights while Parliament passed permanent laws that would strengthen those rights. Twenty years on, nothing has happened. To make matters worse, Ipilra is rarely enforced effectively. If it were, we could at the very least ensure that people were treated as stakeholders in the processes that affected them.
This has left communities incredibly vulnerable when mining companies seek to begin, or to expand, mining operations on their land. Add to this dire state of affairs the fact that benefits flowing from mining operations are routinely captured by politically connected elites working with autocratic traditional authorities.
Traditional leaders often enter into leases without consulting the members of the community who occupy the land in question. Mining companies benefit enormously from this situation. After all, it is far easier and more profitable to deal with one landlord than many individuals who will each want their fair share.
These elites would benefit even more if the ANC under President Jacob Zuma has its way. In direct contradiction to the constitutional promise of legislation to guarantee secure tenure, there is a legislative push under way to transfer communal land to Traditional Councils. This would leave individual community members powerless as to what happens on their land.
This article first appeared in the Business Report, 20 July 2016