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Rural residents from the Pondoland Wild Coast are to launch a legal test case in the Pretoria High Court on Monday challenging the right of mining companies to dig for any minerals without prior consent from communal land owners.
The case, set down for hearing by Judge Annali Basson for three days (April 23-25), has far-reaching ramifications for the mining industry and government policy if the court accepts legal submissions by 128 subsistence farmers and other residents from the Xolobeni/Umgungundlovu area, south of the Wild Coast Sun.
This is because current mining laws require companies to “consult” affected communities – but do not require explicit permission from landowners or communities.
While the residents allege that a titanium mining proposal by Transworld Energy and Mineral Resources will lead to “disastrous social, economic, and ecological consequences”, the case ultimately hinges on the legal interpretation of two separate laws — one that aims to promote mining, the other to protect the interests of communal land owners.
If granted, it will affect land and mining rights all over the country
Legal counsel for the Xolobeni residents say both laws — the Mineral Resources and Petroleum Development Act (MPRDA) of 2002 and the Interim Protection of Informal Rights to Land Act (IPILRA) of 1996 — were enacted to redress economic and territorial dispossession and to restore land and resources to black people.
“IPILRA makes it clear that customary communities have a right to decide whether or not development occurs on their land, while the MPRDA requires that the community is consulted before companies can be awarded a mining right, but it does not expressly require that they consent.”
The residents submit that both laws must be read to work together, not to conflict.
“The only way to do that is to hold that both IPILRA and the MPRDA apply. The community must be consulted under the MPRDA, and must consent in terms of IPILRA. This is not only the best way to interpret the statutes in light of their purpose, it is the only interpretation that is consistent with international law and that promotes constitutional rights,” the residents say in court papers.
However, the Ministry of Mineral Resources argues that the 2002 Mining Act trumps the 1996 Land Act, while Transworld submits that the Xolobeni case has far-reaching implications and the attributes of a test case.
“If granted, it will affect land and mining rights all over the country,” say Transworld counsel, arguing that if the Xolobeni case succeeds this would allow communities to veto any mining unless there was a high degree of pro-mining consensus.
The mining ministry argues: “At its core, this application seeks to reinstate the right to sterilise the extraction of national mineral resources by declaring that consent from communities with informal rights to land must be obtained before mining can occur on the land which they informally occupy. This would have the effect of resurrecting the old mineral regime, by reviving the extinguished right of consent and in effect giving communities with informal rights to land the ability to sterilise the extraction of national mineral resources.”
The Bench Marks Foundation, a church-based organisation chaired by Rev Dr Joe Seoka has also joined the legal application in support of the Xolobeni residents.
The foundation, which has previously documented the activities of Lonmin, Anglo Platinum, Impala Platinum, Aquarius, Xstrata and Royal Bafokeng, said it had been mandated by several churches to monitor the activities of multinational corporations to ensure that they would respect human rights, protect the environment and conduct their business in a manner where profit was not made at the expense of the poor and marginalised.
Foundation director John Capel says in the court papers that: “Mining is often presented as a virtually universal ‘positive’ for the South African economy and its people… [but] the Foundation has formed a more nuanced view on mining. While mining can provide benefits, communities are vulnerable to grievous harms that often outweigh any gains. It has therefore come to believe that communities should be empowered to determine whether mining should be allowed on their land.”
Counsel for the Xolobeni residents will argue that: “The community have essentially featured as an afterthought – they have only been consulted regarding the environmental authorisation and there has been no indication from Transworld or the Department of Mineral Resources that the community’s repeated declarations that mining cannot occur on their land have been considered, much less heeded.”
They also say in papers that the Xolobeni mining applications have caused “intense conflict and division in the community that has resulted in violence within and between families”.
“These conflicts have been triggered and exacerbated by the fact that certain community members, including former mining opponent iNkosi Baleni, have become directors in subsidiary companies and various other activities.”
Transworld, represented by local businessman Zamile Madiba Qunya, said some local residents had sought in the court papers to paint a picture that his company was complicit in the unrest and violence at Xolobeni.
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