Legal victory for mining communities

Constitutional Court judgment overrules High Court decision that mining rights supersede the rights of landowners.

Elderly women in traditional garb broke into song and ululation yesterday as the Constitutional Court set aside an interdict and eviction order that was granted to a mining company last year.

“We are so proud, we are so happy … people have been trampled upon by this kgosi (chief) and the mining companies, [who are] just looking for money and profits,” said Motlapele Ntshabele, 67.

The scene was set by acting Constitutional Court Justice Xola Petse, who, in his written judgment, affirmed land rights for rural people. To do this, he borrowed from revolutionary Caribbean thinker Frantz Fanon’s Wretched of the Earth, in which Fanon writes: “For the colonised people, the most essential value, because the most concrete, is first and foremost the land: the land which will bring them bread and, above all, dignity.”

Last year, the North West High Court granted an interdict and eviction order to Itireleng Bakgatla Mineral Resources (IBMR) to evict members of the Lesetlheng community, who cultivate and keep cattle on the platinum-rich Wilgespruit 2 J.Q farm in North West.

“We use the land for cattle farming and for cultivation,” said Lesetlheng community activist Rampho Pheto, who was elated after the Constitutional Court ruling this week.

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25 October 2018: Rampho Pheto, a resident of the Lesetlheng village community in the North West, stands outside the Constitutional Court.

Background

IBMR was founded by the Bakgatla clan in 2004 and was granted mining rights in 2008. Full-scale mining, which commenced in 2014, prevented people from the full usage and enjoyment of the farm.

To remedy the situation, the Lesetlheng community halted mining operations by means of a spoliation order, which restored possession of the farm to the community. But IBMR then filed for an interdict and eviction order to prevent the community from accessing the farm.

“Our forefathers donated cattle so the farm could be bought,” said Pheto.

The 37 Lesetlheng community members claimed that Wilgespruit farm was purchased and fully paid up in 1919 after 13 families began making contributions in 1916.

The community told the courts that due to the racist colonial laws of the time, they were unable to register the farm in their names. Instead, the farm was registered in the name of the then minister of native affairs, in trust of the Bakgatla-Ba-Kgafela community.

The community argued in court that they were the rightful owners of the land and should have been consulted. IBMR argued that their mining right superseded those of the landowners.

In its ruling last year, the North West High Court agreed with IBMT that “the holder of the mining right enjoys preference over the surface rights of owner and informal land rights holders”.

The high court also held that, in terms of law regulating minerals in South Africa, as soon as the minister of mineral resources grants mining rights, the rights of landowners are diminished.

The rule that this amounts to expropriation allows landowners to apply for compensation.

The community argued that mining in their community could not continue because IBMR did not follow procedure to resolve the dispute in terms of section 54 of the Mineral and Petroleum Resources Development Act (MPRDA).

They said that as the rightful owners, they were not afforded a chance to contest the prospect of mining and were not compensated, therefore, mining had to be halted.

But the high court disagreed, saying that “there were numerous consultations with the Bakgatla community before and after the mining rights [were granted]”.

In dismissing the application for leave to appeal, the court held that “mining will come to a standstill if the holder of the mining right must first compensate before expropriation”, and that, in terms of a title deed, the state owned the farm in trust for the community.

Aggrieved by the decision, the 37 direct descendants of the 13 families that purchased the farm in 1919, along with other members of the community, petitioned the Constitutional Court, which found that it was in the interest of justice to hear the matter.

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25 October 2018: Motlapele Ntshabele, 67, a member of the Lesetlheng village community outside the Constitutional Court.

Absence of meaningful engagement

In its landmark judgment, the Constitutional Court ruled that IBMR’s application for an interdict was premature as the company had to first exhaust all available remedies before applying for an interdict. This included section 54 of the MPRDA, which allows for speedy resolutions of disputes between landowners and mining rights holders by balancing their competing interests.

The Constitutional Court further held that the North West High Court erred by finding that mining rights supersede the rights of landowners.

In addition, according to the Constitutional Court, the North West High Court failed to recognise that section 54 of the act was essential when handling disputes. This process, according to the ruling, should have been exhausted before seeking an interdict.

The court added: “Where land is held in communal basis, affected parties must be given sufficient notice of and be afforded a reasonable opportunity to participate, either in person or through representatives, at any meeting where a decision to dispose of their right to land is to be taken.”

IBMR argued that its lease agreement, which included its mining right, was agreed on at an open community meeting. As such, the company argued the agreement terminated the Lesetlheng community’s informal or customary rights over the land.

In his judgment, Petse wrote that there was no “shred” of evidence to substantiate this. “This resolution does no more than merely indicate that it was adopted and signed by Kgosi Pilane and a representative of Barrick.”

Some people, like Ntshabele, spoke to New Frame at the Constitutional Court on the day of the ruling agreed with Petse. “He [the chief] did not engage with the community, even that [open community meeting] … where a decision was taken … he will just come and dictate what he feels like, what he has agreed upon with these people, the mining firms, and just come and tell the community: ‘I have taken this decision,’ without engaging the people,” she said.

Pheto said: “When we complain that these guys did not consult us before they get into the land, he tells them he is the chief, they must take everything from him.”

The judgment has been hailed as a landmark ruling. Louise Du Plessis of Lawyers for Human Rights, who represented the Lesetlheng community, said in a statement: “This judgment is exactly the milestone mining communities needed, especially because it clearly outlined that having a mining right does not surpass the rights of those that are currently occupying the land.”

Ntshabele said: “This is not about us, it is about our children and our children’s future. We are very happy that we have set a trend for other communities in South Africa.”

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