The Constitutional Court ruled unanimously last week that mining and the Minerals and Petroleum Resources Development Act (MPRDA) cannot trump the constitutional rights of the 17-million South Africans living in former homeland areas.
Rural people who had travelled to Johannesburg last Thursday to hear the Court’s decision in the case of Maledu and Others v Itereleng Bakgatla Mineral Resources cheered and hugged at the news.
The right affirmed by the court is contained in Section 25(6) of the Constitution, which protects people whose tenure is legally vulnerable because of past racially discriminatory laws and practices. Currently most former homeland land is registered in the Deeds Office as belonging to the government of the Republic of South Africa. Most homeland dwellers do not have recorded rights to their land.
At the same time traditional leaders are increasingly claiming that they, and not the people who have inherited it over generations, own the land and are entering into deals with mining companies without the consent of the rights holders directly affected. This is the situation that gave rise to the Maledu judgment.
Last week’s judgment rules that the MPRDA, which governs the award of mining rights, must be read concurrently with the Interim Protection of Informal Land Rights Act of 1996 (IPILRA), which protects vulnerable land rights.
IPILRA recognises land rights that exist and are verifiable in practice, though not in terms of common or statute law. It also upholds customary law rights. The Constitutional Court has ruled that customary ownership is ownership in its own right and not merely “akin to ownership”.
Last week’s judgment means that the people directly affected by mining must consent to any changes affecting their land rights. Where mining impacts on homes and fields the families directly affected must consent, and, where land rights are shared as in the case of grazing land and forests, then the majority of those affected must agree.
If people do not consent, then their land rights must be expropriated and they must receive compensation. This may sound like cold comfort, but it is a massive improvement on current practice in terms of which rural land rights are simply confiscated, with pay-offs going to traditional leaders, rather than the people whose rural livelihoods are destroyed by mining.
It also means that when Mineral Resources minister Gwede Mantashe next visits the anti-mining community at Xolobeni on the Wild Coast, he will have to negotiate with the people whose houses, fields and grazing land would be directly affected by mining, and not with people and chiefs bused in from surrounding areas who stand to benefit from various tenders, while their own land rights are not affected.
A trio of laws, the MPRDA of 2002, the Traditional Leadership and Governance Framework Act of 2003 (TLGFA), and the Communal Land Rights Act of 2004 have sought to cut politically connected BEE partners into mining on terms that deny the basic citizenship and property rights of the 17 million South Africans living in the former homelands.
The MPRDA established the imperative of BEE empowerment. The TLGFA resuscitated the contested tribal boundaries delineated in terms of the much resisted Bantu Authorities Act of 1951. The Communal Land Rights Act of 2004 would have given traditional leaders ownership and control over all the land in the former homelands, but was struck down by the Constitutional Court in 2010. These laws stand in stark contrast to IPILRA which was adopted specifically to protect the underlying rights of the people who actually use and occupy the land. While government no longer favours the approach adopted by IPILRA it cannot simply repeal IPILRA because it is a law required by Section 25(9) of the Constitution.
The result has been government and the mining houses simply ignoring IPILRA, which is why Thursday’s ruling that the MPRDA must be read concurrently with IPILRA is a fundamental game-changer for both rural people and the mining industry.
A day before the judgment, Thabelo Chabane of the Minerals Council said during an SAFM radio programme that the law requires mining houses to deal with traditional leaders and with municipalities, and that the Council cannot be blamed if traditional leaders are unaccountable and municipalities are dysfunctional. He also said that they cannot be expected to deal with ‘unofficial structures’ who purport to represent rights holders as nobody knows whose interests these structures actually represent.
These statements by a senior official are a damning indictment of the Minerals Council. There is no law that requires mining houses to deal with traditional leaders. Nor is there any law that authorises traditional leaders to sign deals with mining houses. Former President Kgalema Motlanthe’s 2017 High Level Panel pointed this out to the Minerals Council and to Parliament. The panel warned that the multi-billion deals that have and are being signed between mining houses and traditional leaders are legally precarious on a number of grounds.
Which is why there is a bill in the final stages of enactment in Parliament that would, for the first time, authorise traditional leaders to sign third party deals with mining companies without the consent of those whose land rights are affected. I am referring here to Clause 24 of the Traditional and Khoi San Leadership Bill.
If that bill is enacted – and our president has promised the traditional leader lobby that it is being fast tracked – it too will be struck down by the Constitutional Court on the basis that it abrogates the tenure-security provision contained in Section 25(6) of the Constitution. But the case would take years to reach the top court.
In the meanwhile, however, the Constitutional Court has raised the bar for those seeking to mine in the former homelands. Miners will need to start by identifying and consulting with the people whose homes, farms and fields would be affected, not by buying off government-imposed chiefs. Where grazing land is at issue they need to identify who has access to that grazing land and negotiate with those people as a group. If they cannot afford to offer proper compensation they should not go ahead with mining.
In far too many areas of South Africa destructive mining practices are approved because they make a quick buck for politically connected BEE shareholders while the long-term environmental and livelihood damages are borne by the poorest South Africans.
This article first appeared in the Daily Maverick on 1 November 2018