Protecting Ancestral Land from the Pursuit of Profit – Xolobeni Community Stops Grant of Mining Right

In November 2018 the community of Umgungundlovu, which has called the Xolobeni area of the Eastern Cape in South Africa home since the early 1800’s, secured a critical legal victory to stop planned mining activities on its ancestral land.

Previously, it had been accepted that the landowners and communities only had to be consulted before a mining right is granted. The purpose was to inform them of the planned activities and the potential impacts. It wasn’t necessity to get their consent – the landowner and communities could object, but they couldn’t ultimately prevent the granting of a mining licence. Their only recourse was a claim for damages if there no agreement could be reached with the mining company.

Faced with the loss of access to their land and their way of life, the Umgungundlovu traditional community approached the court for an order declaring that a mining right can’t be granted over their ancestral land without their consent. They argued that the Interim Protection of Informal Land Rights Act (IPILRA) required the free and informed consent of traditional communities before they could be deprived of their land.

The mining company (Transworld Energy and Mineral Resources) disagreed. It relied on the Mineral and Petroleum Resources Development Act (MRPDA), which didn’t require “consent”, but only “consultation”. They argued that the MPRDA trumps the IPILRA, and that no person had a right to refuse their consent to mine.       

The South African High Court disagreed with the mining company, and held that a mining right couldn’t be granted over a community’s land unless the community had first granted their free and informed consent.

The court said that the question at the heart of the case was:

“Who gets to decide whether mining activities take place on this area – the community which has lived there for centuries, or the [mining company]?”

It was not disputed that the Umgungundlovu community was indeed a “community” and held informal rights to the land in terms of the IPILRA. What was in dispute was if the requirements of both the IPLRA and the MPRDA must be complied with in circumstances where land falls under the IPLRA.   

The court accepted that the IPLRA and MPRDA had different thresholds when it came to engaging with communities and landowners. The IPLRA needs “consent”, which equates to an agreement between the parties. In terms of international law consent needs to be “free, prior and informed”. The MPRDA, however, only needs “consultation”, which is only a process of consensus seeking. The aim of consultation isn’t to reach an agreement but only to involve the landowner and inform them of the possible interference with their property rights.

The court rejected the mining company’s argument that there was a conflict between the two acts. The IPLRA specifically regulates South African customary law, while the MPRDA regulates mining activities while being silent on customary law. The court applied the recent decision of the South African Constitutional Court in the Maledu case (which I discuss here), where it was held that the MPRDA and the IPLRA weren’t conflicting and must be interpreted and read harmoniously.

The purpose of the IPLRA is to protect traditional communities’ informal rights to land which were not previously protected under racially discriminatory laws. It gives traditional communities greater protection than the protection enjoyed by common law landowners. The greater protection is justified because a traditional community’s way of life is intrinsically linked to their ancestral land:

“… the communal land and the residential plots (‘umzi’) of each imzi [household] forms an inextricable and integral part of this communities way of life. … a residential plot represents far more than merely a place to live: it is a symbol of social maturity and social dignity. Each residential plot further serves as a critical conduit for the preservation of relations of inter-linkage and mutual dependence between the living and the dead and is critically important for the well being of each imzi.

… the proposed mining activities … will not only bring about a physical displacement from their homes, but will lead to an economic displacement of the community and bring about a complete destruction of their cultural way of life.”

The court accordingly held that the Minister of Mineral Resources did not have the legal power to grant a mining right over a community’s land that is protected by the IPLRA, without the community’s prior consent.

This judgement was hailed by Amnesty International as “a clear message that multinational mining companies cannot trample over people’s rights in the pursuit of profit”, but quickly condemned by the Minister of Mineral Resources for impeding the government’s ability to grant mining rights to companies.

The minister has indicated the intention to appeal the decision, so this won’t be the end of the Umgungundlovu community’s legal battle.  


No Mining Without Consultation – Constitutional Court Prevents Mining on Community Land

In South Africa land ownership is separate from the right to mine minerals found in the land. The mining right holder is, however, given the right to enter land that it doesn’t own to conduct mining operations. This leads to a conflict of rights when a mining company wants enter land that is being productively used as farmland or private housing.

Historically, the rights of a mining right holder trump the landowner’s. If a landowner refused access, then the mining company could approach a court for an order forcing the landowner to give the company access. Any compensation payable to the landowner for the loss of the use of the property could be determined at a later date. A recent decision by the South African Constitutional Court has, however, shifted the balance of power from the mining company back towards the landowner. Even though this case dealt with the rights of a traditional community, the principles apply to all owners and lawful occupiers of land going forward.

In 2008 a mining company was granted a mining right. The company then concluded a lease agreement with the Bakgatla-Ba-Kgafela Tribal Authority to access the property. After the company started mining, 38 community members objected to the operations primarily on the argument that, (i) they were the true owners of the land, not the tribal authority; and (ii) the mining company had not consulted with them as the landowners before the mining right was granted.

In response the company alleged that they had properly consulted with the tribal authority. The company approached the High Court and was granted a court order (i) evicting the community members from the land; and (ii) preventing them from entering, or conducting farming operations, the land. In its reasoning the High Court applied a previous Supreme Court of Appeal decision (the Maranda case). It held that the mining company had attempted in good faith to comply with its consultative duties and were therefore free to start with their mining activities – if there was any compensation that was due to the community members, then the community members could claim compensation in terms of the “section 54 dispute process” in the Mineral and Petroleum Resources Development Act (MPRDA). It held that mining company didn’t have to follow or exhaust the section 54 dispute process before it could access to the property.

The Constitutional Court disagreed, based on two questions. First, were the 38 community members either owners or lawful occupiers of the property, and entitled to invoke the section 54 dispute process? If so, could the mining company get a court interdict to enforce its right to access the property before it exhausted the section 54 dispute process?

The court found that the community members had an “informal right to land” in terms of the Interim Protection of Informal Land Rights Act (IPILRA). This had not been extinguished when the mining company entered into the lease agreement with the Tribal Authority because the requirements of IPILRA were not followed. The community members were therefore lawful occupiers for the purposes of the section 54 dispute process.

The court then found that the mining company couldn’t enforce its right to access the property before it exhausted the section 54 dispute process. This was to ensure the “balancing of the rights of mining right holders on one hand and those of the surface rights holders on the other. The eviction order was set aside.

The principles of this case apply to all lawful owners and lawful occupiers of land going forward. Practically, a mining company won’t be able to access property and commence with operations unless (i) the commencement of mining operations has been permitted by regional manager, or (ii) the compensation that is payable to the landowners or lawful occupiers has been mutually agreed, or determined by a competent court.

The MPRDA section 54 dispute process

The section 54 dispute process is available if the owner or lawful occupier of a property (i) refuses access; (ii) places unreasonable demands for access; or (iii) can’t be located.

The Department of Mineral Resources’ regional manager must be notified, and the owner or lawful occupier may make representations. After considering the representations the regional manager has two options.

In extreme circumstances the matter may be referred for the government to expropriate the land.

Otherwise, the parties must agree the compensation payable to the owner or lawful occupier for the damage suffered. If an agreement can’t be reached, the compensation payable will be determined by either arbitration or by a court.

If failure to reach an agreement is because of the actions of the mining right holder, then the Regional Manager may prohibit the commencement of operations until the dispute is resolved.

Were the community members entitled to the section 54 dispute process?

Only owners or lawful occupiers are entitled to the section 54 dispute process.

The community members alleged that they were the owners of the property because their ancestors had bought it in 1919. The property was, however, registered as being held in trust on behalf of the Tribal Authority because the past apartheid laws prevented the property from being registered in their names as joint owners. The community members had instituted a separate claim in terms of the Land Titles Adjustment Act to rectify this on the property’s title deed.

The court, however, found that it wasn’t necessary to decide ownership because the community members were lawful occupiers in terms of the Interim Protection of Informal Land Rights Act. The company’s mining right did not mean that the community’s lawful occupation of the property was now unlawful.

The court then investigated if the company’s lease agreement with the Tribal Authority stripped the community members of their informal land rights but found that the provisions of IPILRA hadn’t been complied with in order to deprive the community of their rights.

The community therefore remained lawful occupiers, and were entitled to the section 54 dispute process.

Must the section 54 dispute process be exhausted?

The mining company sent a notice invoking the section 54 dispute process, but this was never followed up. The company argued that it wasn’t necessary to exhaust the section 54 dispute process, and that this position was supported by the Supreme Court of Appeal’s earlier decision in the Maranda case.

The Constitutional Court, however, emphasised two differences between the current case and the Maranda case. First, in the Maranda case the landowner refused all approaches by the mining right holder and the regional manager. It was clearly the landowner’s objective to frustrate the objectives of the MPRDA through an unreasonable refusal.

More importantly, the Constitutional Court highlighted that the MPRDA had been amended, and the section providing for further consultation between the landowner and mining right holder for access was repealed (section 5(4)(c)). It was now imperative that the section 54 dispute mechanism is followed to balance the competing rights between an owner or lawful occupier on one hand and the mining right holder on the other.

In the future mining companies must consult

The Constitutional Court has made it clear that a mining company must engage with owners and lawful occupiers of property to agree terms of access. If there is a dispute on the terms, then the section 54 dispute process in the governing MPRDA must be followed.

However, I don’t believe that the court’s decision means a mining company may never be granted access commence operations without first agreeing terms. The section 54 dispute process provides that if there is no agreement on compensation because of the actions of the mining right holder, then the Regional Manager may prohibit the commencement of operations until the disputes resolution. By implication this means that if the mining company isn’t at fault, then they may be granted access pending the disputes resolution.

The mining company must, however, consult. Consultation means meaningful consultation according to the principles outlined by the constitutional court in various judgements.

Without an attempt at meaningful consultation,access should be denied.         


The Intersection of Customary Law and Environmental Protection

It shouldn’t be possible for the state to criminally prosecute a person for exercising their legal rights. This was, however, exactly what happened to Mr Gongqose and other members of the Dwesa-Cwebe community after they were arrested for fishing in the Dwesa-Cwebe Marine Protected Area without a fishing permit.

They argued that they were not acting unlawfully because they were fishing according to their generations old customs and traditions. They were, however, convicted and given a suspended sentence on condition that they didn’t enter the marine protected area again without a permit. After appealing unsuccessfully to the High Court, the matter came before the South African Supreme Court of Appeal.

The Supreme Court set aside the criminal convictions. The court found that the Dwesa-Cwebe community had a constitutionally protected customary right to fish in the marine protected area. At the time the laws governing the marine protected area didn’t extinguish the community’s customary rights, and they were accordingly acting lawfully when they entered the marine protected area to fish.

This judgement has been wrongly criticised using the argument that environmental protection laws can now be circumvented by communities. This argument was, however, considered and rejected by the court. The court recognised that there may be a conflict between the right to a protected environment and cultural rights, but found that these can coexist. The Dwesa-Cwebe community has a direct interest in ensuring the protection of their resources. Their customary laws ensured the continued protection of the environment, and were not inconsistent with the right to a protected environment. It should, however, be kept in mind that this case dealt with the provisions of the relevant law before it was amended to specifically deal with customary rights.

Questions that the court considered

If the community members were exercising customary rights when they entered the marine protected area, then their actions of fishing without a permit would be lawful, and their criminal convictions would have to be set aside.

The legal questions the court considered were,(i) did the Dwesa-Cwebe community have a customary right to access the marine protected area and use the marine resources; and (ii) if so, then did the Marine Living Resources Act (“MLRA“) extinguish these customary rights?       

Did the Dwesa-Cwebe community have customary rights?

Members of the community, anthropologists and researchers gave evidence on the Dwesa-Cwebe community’s customs and traditions.

The Dwesa-Cwebe community had lived in the area of the marine protected reserve for more than 300 years before the areas were annexed by the Cape government in 1885. In the 1930’s the community was physically removed from the area to give white farmers access to the land. Further removals of community members occurred during the 1970’s, and the reserves were fenced in 1975. White families were allowed to stay in the fenced reserve areas, but the black community was denied access.

The community relied heavily on marine resources for healing, ancestral ceremonies, and to feed their families. Families sold surplus fish to afford to maintain and educate their children.

The community passes down an appreciation of the natural environment from generation to generation. From a young age children are taught the skills and traditions of fishing. There was a longstanding and well developed system of customary law that regulated access to the marine resources. These traditions included rules for the allocation of fishing spots and settling disputes, and rules prohibiting catching spawning fish and fish under a certain size.

The court accordingly held that “since time immemorial” Dwesa-Cwebe community had a tradition of utilising the marine and terrestrial natural resources, and thus had a right to continue to exploit these natural resources under customary law.      

Did the Marine Living Resources Act extinguish the community’s customary rights?

After finding that the Dwesa-Cwebe community had a customary right to access and use the natural resources in the marine protected area, the court had to decide if the MLRA extinguished these customary rights. This was the first time a South African court had to consider the extinguishment of indigenous or customary rights.

South Africa’s Constitution protects customary law. Customary law is only subject to the Constitution and to “legislation that specifically deals with customary law”. It isn’t subject to general legislation.

The MLRA, at the time, didn’t specifically deal with customary law, and it therefore couldn’t extinguish the Dwesa-Cwebe community members’ right to access the marine protected area and use its resources. The court accordingly held that when community members exercising their customary law rights and entered the marine protected area, their actions were lawful. The court set aside their criminal convictions.


A Constitutional Endorsement for Direct Democracy in Customary Law

In the Royal Bafokeng Nation “a king is a king by virtue of the people” (Kgosi ke Kgosi ka Morafe). This was endorsed by the South African High Court in a decision extending the principle of direct democracy in the Royal Bafokeng Nation’s (RBN) customary law.

The court had to decide if the RBN could institute significant legal proceedings without consulting the community. These proceedings were of great public concern because it would impact the registration of community land, and impact a long running community dispute regarding the rightful ownership of property.

After analysing RBN’s customary practices, and considering the contentious nature of the legal matter, the court held that the Supreme Council of the RBN couldn’t unilaterally decide to institute litigation of this magnitude – there was a legal duty to consult widely with the community beforehand.

Because there was no wide consultation with the community, the court found that the RBN had no authority to institute the legal proceedings, and that RBN’s attorneys had no authority to act in the legal proceedings.

The nature of the legal dispute

The Minister of Land Affairs was reflected as the registered owner who held over 60 properties “in trust for” the Royal Bafokeng Nation. The RBN disputed the existence of any trust or trust relationship between the Minister and the RBN, and asked the court to declare the RBN as the owner of these properties, and to direct the Registrar of Deeds to register the properties its name.

The Bafokeng Land Buyer Association (the Association) is a group of RBN community members who claim that they are the rightful owners of some of the properties because these properties were originally bought by their ancestors. The Association intervened in RBN’s case as an interested party.

Consultation structures in the Royal Bafokeng Nation

The Royal Bafokeng Nation is a traditional community of approximately 300,000 people, recognised in terms of the Traditional Leadership and Governance Framework Act, No 41 of 2003. The RBN has three levels in its governance structure.

The Supreme Council (L1) is the upper most structure. It is a joint sitting of the RBN’s executive council and the Council of Dikgosana (L3). The Supreme Council meets four times a year, and has historically taken important decisions relating to the community. It ultimately takes few decisions, however, and serves chiefly as a forum for discussion and information sharing.

The Kgotha Kgothe (L2) is a broader community level. It is a general meeting of all of the community members. The Kgotha Kgothe meets two times a year. It is generally not a decision making body, but it serves as a forum for the RBN administration to report back to community members, and for community members to raise matters for discussion. All important matters go before the Kgotha Kgothe (L2) for debate and input, and the members at the meeting can overturn any decision.

The Makgotla (L3) operates at a local level. The community has 29 villages divided into 72 Dikgoro (wards). Each Dikgoro (ward) is led by a hereditary Dikgosana, and meets monthly in its local Kgotla. The Dikgosana also sit as part of the Supreme Council (L1). Community members may ask their Dikgosana to take any local matter up to the Supreme Council (L1). The monthly Kgotla (L3) meetings play a vital governance role, and all disputes are mediated and resolved at this level.

In this structure democracy works from the bottom upwards. The members of the community participate directly in the Makgotla (L3) and the Kgotha Kgothe (L2). They are also represented by their Dikgosana (L2) at the meetings of the Supreme Council (L1).

The Associations legal challenge to the Supreme Council’s decision

During September 2005 the Royal Bafokeng Nation’s Supreme Council passed a resolution authorising the institution of legal proceedings. The Association directly challenged this resolution because the Supreme Council “does not have the power to make a decision of this sort, at least not alone. Insofar as the Council does have decision-making powers on such matters, it has to consult very broadly within the traditional community before doing so, and act on the community’s wishes”.

It was common cause that the resolution was passed by the Supreme Council without any discussion within the Makgotla (L3) or Kgotha Kgothe (L2). There was also no report back to the community after the resolution was passed.

The court accordingly had to determine if the Supreme Council had a legal obligation to consult broadly with the community before taking this decision.

The court analysed the decision making structures, the values publically pronounced by the Kgosi (King), and past practice. The court found that it was part of the RBN’s customary law that all matters of a “public concern” had to be referred to broad consultation for the community to debate. The court, however, disagreed with the argument that the Kgosi (King) had the sole right to determine which matters were of a “public concern” and needed to be referred to broader consultation.

The court emphasised that customary law must be interpreted in light of the South African Constitution and its values, finding that public consultation and participation in decision making is a key component in promoting and strengthening democracy, and protecting rights and freedoms. Without a duty to consult the community, the community wouldn’t have any ability to participate in the management of their assets.

The court accordingly held that there is a duty under RBN’s customary law to consult with the community on matters of public importance. The Supreme Council’s failure to consult with the community regarding the legal proceedings meant that there was no valid decision to proceed with the court case.