A Victory for Communities Against Eviction in the Mining Context

The Constitutional Court recently handed down a landmark judgment in Maledu v Itereleng Bakgatla Mineral Resources (Pty) Limited.[1]This judgment has important consequences for communities, landowners and holders of rights in terms of the Mineral and Petroleum Resources Development Act 28 of 2002 (“MPRDA”). The judgment was greeted as a victory for communities over mining companies seeking their eviction, particularly those communities whose land tenure has been precarious as a result of past racial injustices. It provides that those who are directly affected by mining must consent to changes to the land rights, or be expropriated with compensation where they do not. What is critical about this judgment is that it clearly establishes that rights granted in terms of the MPRDA do not trump land tenure rights in the Interim Protection of Informal Land Rights Act 31 of 1996 (“IPILRA”).

The farm in contention in these proceedings is located in the North West Province of South Africa. Despite the Minister of Rural Development and Land Reform being the registered owner of the farm (in trust for the Bakgatla-Ba-Kgafela community), the applicants, who occupy and work the farm, claim ownership. As a result of the racist practices and laws that prevailed in the past, their predecessors-in-title were not able to take transfer of the property themselves, despite being the purchasers. Their occupation of the farm is subject to protection in terms of IPILRA. 

The respondents were two mining companies – Itereleng Bakgatla Mineral Resources (Pty) Limited and Pilanesberg Platinum Mines (Pty) Limited. These companies are the holders of mining rights granted in terms of the MPRDA with regard to the land under contention.

The Constitutional Court did not engage with the applicants’ claim to ownership (and thus their claims to be consulted in such a capacity in terms of the MPRDA). Instead the Court focused on whether the applicants should be consulted in terms of IPILRA, as well as whether their rights in terms of IPILRA were extinguished. The Court also engaged with the question as to whether mining could only commence once the procedure in the MPRDA concerning compensation for lawful occupiers, such as the applicants, had been completed.

The High Court found that it appeared that the applicants had been consulted in terms of IPILRA. The decision was based thereon that the property was owned in trust for the community of which the applicants were part, and that a community resolution was taken at a community meeting to request that the Minister (as registered owner in trust for the community) to conclude a lease with Itereleng. Furthermore, the High Court argued that IPILRA did not require every holder of an informal land right be consulted, only a majority. In the High Court’s view, this meant that the resolution taken at the community meeting had the effect of terminating the informal land rights of the applicants, meaning they could no longer occupy the land. Furthermore, the High Court was of the view that the respondents could proceed with mining operations, despite the conflict resolution procedure set out in section 54 of the MPRDA, not having been completed. The High Court ultimately ordered the eviction of the applicants. The matter was subsequently appealed to the Constitutional Court.

The remarks of the Constitutional Court concerning section 54 are important for landowners in general. Section 54 operates as a conflict resolution provision, which may ultimately result in the payment of compensation to the landowner or lawful occupier if it appears that mining or prospecting operations may cause them loss or damage. The respondents’ argued that it was not necessary to exhaust the procedure set out in section 54 before a right holder could approach a court for an interdict and eviction order against the applicants.[2]Such an argument, if accepted, would have reduced the already inadequate protection for landowners and lawful occupiers in terms of the MPRDA.[3]It would have effectively created a situation in which large mining companies could use the courts to steamroll over the rights of landowners and occupiers, without settling important matters of compensation first.

The Constitutional Court rejected this argument by the respondents. The clear wording of section 54 requires that its procedure be exhausted prior to any further legal action by the right holder.[4]Permitting a right holder to proceed with mining would evidently undermine the purpose of the section, that being to strike a balance between the rights of the landowner/lawful occupier and right holder.[5]

However, section 54 is a conflict mechanism that only applies where the occupation of the land in question is lawful.[6]The court thus had to engage with the question as to whether the applicants’ rights in term of IPILRA had been validly terminated. The Court made it clear that the mere granting of a right in terms of the MPRDA did not have the effect of depriving people of their rights held in terms of IPILRA.[7]A piece of legislation that seeks to protect the rights of those whose land tenure has been historically precarious as a result of past racism cannot simply be ignored, and mining companies must comply with IPILRA.[8]The MPRDA does not trump IPILRA, and the two statutes must be read together, as far as possible, in a manner which gives effect to both their purposes.[9]

But were the applicants denied of their informal land rights in terms of IPILRA? Where land is held communally, land rights may only be taken away “in accordance with the custom and usage of that community”.[10]However, the legislation clearly states that custom is deemed to uphold the principle that a majority of the holders of such rights must consent to the disposal of their rights.[11]

The community meeting did not in any way indicate that a majority of the holders of rights in the land in question had consented to the termination of the informal land rights. Instead, the resolution adopted at the meeting merely indicated an agreement to this effect reached between Kgosi Pilane (the traditional leader of the Bakgatla-Ba-Kgafela and a representative of Barrick Platinum SA (Pty) Ltd (a partner of Itereleng).[12]The consent of the traditional leader alone absent the consent of the affected occupiers was clearly not sufficient in the Court’s view.[13]

While this judgment is important for landowners in general, given the Constitutional Court’s remarks on section 54, it is particularly crucial for holders of mining rights in the former homelands. Claassens states that this one judgment has “raised the bar” for those seeking to mine in these areas, requiring them to meaningfully engage with those directly affected, rather than dealing solely with traditional leaders. It is hoped that as a consequence of this judgment, mining companies will be more attentive as to who they consult, and cease to try evict communities without following the correct procedures set out in the relevant legislation.

Written by Richard Cramer.