ANALYSIS Ange-Dorine Irakoze
The regime of mining ownership in the South African Mineral and Petroleum Resources Development Act 2002 (MPRDA)[1] is founded on State’s custodianship rights. Under this custodianship, the State regulates mineral resources as common property for all South Africans. The Minister for Mineral Resources and Energy has the power to grant mineral licenses and rights to potential investors based on a ‘first come, first served’ basis.
Until 2019, the Minister only considered if investors had met necessary financial, technical, environment, health and safety requirements and had conducted socio-economic impact assessment as prescribed by law.[2] However, no law or practice required investors to obtain community consent before grant of mineral licences or rights.
Customary Land Rights vs Mining Licences
This status quo on community consent was radically changed by the decision of the High Court in Baleni and Others v. Minister of Mineral Resources and Others.[3] Baleni was the head of Umgungundlovu community that lived in Xolobeni, Eastern Cape since the 1800s. Transworld Energy and Mineral Resources, an Australian mining company, threatened to displace the community so as to mine the sands rich with titanium.[4] Baleni applied to the court and argued that the community retained informal rights over their land as prescribed under customary law and the Interim Protection of Informal Land Rights Act (IPILRA). He urged that these rights must be considered by the State when granting mining rights over land.
The High Court considered informal land rights and the community consent in the grant of mineral licences or rights. The court drew inspiration from section 25 (6) of the Constitution that reads: “A person or community whose tenure of land is legally insecure as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to tenure which is legally secure or to comparable redress.”[5]
Consequently, the Court ruled that the community held land tenure rights by their occupation over decades. Therefore, disposal of the land or granting mining rights to the mining company without prior consultation and obtaining prior consent of the community would amount to an arbitrary deprivation.[6]
Establishing the Principle of Informed Consent
The significance of the court decision is that investors must additionally obtain community consent for minerals in respect of land occupied by communities that have informal and customary land tenure under the Interim Protection to Informal Land Rights Act 1996 (IPILRA).[7]
The High Court in Baleni considered that holders of informal rights were stakeholders who, at least, must be given opportunity to take part in the process of mining licensing.[8] The Court further assessed the extent to which allocation of mining rights over community land are subject to full and informed consent given by the concerned community before such rights are granted. In developing the ‘community consent threshold’, the court was guided by joint reading of provisions in IPILRA and MPRDA. Under these Acts, consent given by the community is derived from a communal decision; the community members assent to a request of granting mining rights over their land; and the authority to assent derives from custom and community informal rights held by the community over land.
The Court also achieved the milestone of limitation of authority of the Minister to concede mining rights. Henceforth, the authority can only be exercised jointly by the Minister, the Director General of Rural Development and the Land Reform while enforcing IPILRA’s provisions on obtaining community full and informed consent.
Baleni Judgement – A Milestone for Community Land Rights in Mining Regions
The facts of the dispute in Baleni judgement are an illustration of disputes occurring between mining companies and communities when social and economic rights are threatened. The High Court, through its landmark decision in Baleni, set up a high threshold of acquiring mining rights over such community land. It is expected that the judgment will create momentum for reform of laws to further recognize the role of communities in the grant of mining rights.[9]
[1] Estelle Hayes and Jeandri Cloete, ‘The Mining Law Review: South Africa’ (The Law Review, 1 November 2021) <https://thelawreviews.co.uk/title/the-mining-law-review/south-africa-mining-law > accessed on January 28, 2022.
[2] Ibid.
[3] Baleni and Others v. Minister of Mineral Resources and Others 2019 (2) SA 453 (GP).
[4] Baleni case, para 3.
[5] Constitution of the Republic of South Africa 1996, s 25(6). Also see Baleni case para 3.
[6] Baleni case, para 3.
[7] Interim Protection to Informal Land Rights Act 1996,s 2(1). Also see Baleni case.
[8] Baleni case, para 3.
[9] For example, see Traditional and Khoi-San Leadership Act 3 (2019).
