A case is playing out in the High Court in Pretoria between a community fiercely resisting mining on its land, and the Department of Mineral Resources and the company that wants to set up a mine.
The matter speaks directly to the unhappiness communities feel about the mining industry and underpins their demands to be included in discussions to formulate a new Mining Charter.
The Umgungundlovu community on the Wild Coast says its concerns have been largely ignored by the department and Transworld Energy and Resources, which wants to establish a titanium mine along a 22km stretch of dunes in the Eastern Cape.
The dispute has dragged on for more than a decade and fractured the small community of some 600 people, with violence and murders marking this matter out as one of significance for the way in which mining is perceived by impoverished rural communities who have historically had to make way for mining operations.
The Umgungundlovu community, central to the dispute around the Xolobeni mining right, demands that its informed consent or opposition be taken into account when the department decides on issuing mining or prospecting rights over rural communities’ property.
The mining right application was frozen for 18 months in June 2017 by then mineral resources minister Mosebenzi Zwane to give the parties in the matter time to reach agreement.
At the heart of the legal argument is whether the 1996 Interim Protection of Informal Rights to Land Act (IPILRA) has equal weighting or overrides the Mineral and Petroleum Resources Development Act (MPRDA), which allows the Department of Mineral Resources to grant mining rights over land without the consent of land owners.
"The effect of the declaratory relief will prohibit the first to fourth respondents as custodians of the South African mineral wealth in terms of the MPRDA, from granting any prospecting and mining right to a new entrant in the mining industry without the consent from a community holding an informal right to land in terms of IPILRA," the department argued.
"The applicants construe the IPILRA together with customary law to the effect that a community with an informal right to land has an unconverted undivided share of the mineral resources in the land which inure, felicitously and exclusively to the community and as a result, the community has the right to sterilise the extraction of the minerals," it said.
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