Mining rights ride roughshod over property rights

It is not just the government that has failed. Mining companies have usurped land belonging to rural communities without due regard for their property rights.

Mineral Resources minister Gwede Mantashe seems perplexed as to why the mining industry has a bad reputation. Commenting on the November 2018 Xolobeni Pretoria High Court judgment which held that the minister was obliged to obtain the “full and informed consent” of the community prior to granting a mining right, Mantashe bemoaned that mining is “treated like a curse, rather than a blessing”.

Mining involves a complicated nexus of mineral rights, land rights and community governance structures. Section 5 of the Minerals and Petroleum Resources Development Act (MPRDA) allows the holder of a prospecting or mining right to enter the land to which the right relates together with his or her employees, and to bring machinery and equipment there for the purposes of carrying out mining operations. Mining houses have used this provision to justify their confiscation of land in rural communities, arguing that the Interim Protection of Informal Land Right Act – which prohibits the deprivation of land rights without the informed consent of the holders of such rights – is trumped by the issuing of a mining right.

Without any provision in the law authorising them to do so, mining companies targeting rural community land have been entering into contractual agreements with traditional leaders, rather than with the people directly affected by mining. These agreements have been sites of maladministration, corruption and theft of community resources. A June 2017 Public Protector report detailed at least R600-million stolen from the tribal account of the Bapo ba Mogale community. Evidence of billions missing from Bakgatla ba Kgafela emerged during the hearings of the Baloyi Commission in 2018. Numerous deals arising from contractual agreements between traditional leaders and mining companies have involved senior government officials and politicians in malpractice.

Across the Limpopo Platinum Belt, communities have lost agricultural and grazing land as well as access to key natural resources that support their subsistence. Some, such as those in the Motlhlotlo, Maotsi, Makobakobe, Botshabelo and Monametse areas, have faced involuntary relocations. I have visited these areas and seen first-hand the profound sense of grief from the loss of land rights and economic displacement.

The agreements signed between traditional leaders acting in the name of communities and mining companies regularly involve the establishment of community trusts intended to be conduits for mining revenues destined for community benefit. However, the gains inevitably flow only to trustees, rather than being distributed for community development. Those whose land rights are adversely affected by mining are not receiving the benefits and they do not receive adequate compensation for their losses.

South African mining law provides for various measures to ensure that mining-affected communities benefit from mining activities on their land. These include legally-binding social and labour plans, the Mining Charter and section 54 of the MPRDA which provides for the determination of compensation to the owner or lawful occupier of the land. Section 11 of the latter Act’s transitional arrangements ensure the continued payment of the old royalties that were historically disbursed to rural communities. Moreover, Section 104 gives communities a preferential right to prospect on, or mine, land registered in their name.

The Department of Mineral Resources (DMR) has neither encouraged communities to make use of this provision nor supported communities who have sought to utilise it. In the Bengwenyama Minerals (Pty) Ltd v Genorah Resources (Pty) Ltd case, DMR unashamedly sought to circumvent the provision in order to benefit its preferred company rather than assisting the community which had tried to initiate the mining of minerals on its own land. The Act gives the minister wide discretionary powers to assist historically disadvantaged persons to conduct prospecting or mining operations.

There are no reported cases where the DMR has attempted to utilise this provision for the benefit of rural communities. Given the plethora of provisions in the law that could make mining an important contributor to local community development, it is astounding that mining-affected communities still remain poor and undeveloped.

The recent clamour around redistribution of land in South Africa has brought focus on the prevalence of inequality in our society rather than on the failures of the African National Congress in relation to land reform or on its failure to protect the rights of vulnerable rural people. It is not just government that has failed: mining companies have usurped land belonging to rural communities without due regard to their property rights.

The recent decision by Mantashe to appeal the Xolobeni judgment demonstrates unequivocally that the current ANC cares less about the voices of mining-affected communities than it does about opening the avenues for the elite to capture the mineral resources beneath the soil that belongs to poor black rural communities.

Rural struggles against mining are likely to continue for as long as community voices are excluded from decision-making and for as long as revenues are received in ill-defined community trusts that benefit a handful of connected individuals and unaccountable traditional leaders who, in the words of former President Kgalema Motlanthe, “act like village tin-pot dictators”.

This article first appeared in Daily Maverick on 15 February 2019.

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