The lack of formal land ownership in communal areas is not only diluting the rights of people who live on this land, but also makes it difficult for mining companies to get the necessary consent for exploration and mining activities in these areas.
According to Bulelwa Mabasa, an attorney and head of land reform at Werksmans Attorneys, lack of formal tenure means people living in communal areas don’t have “individual, autonomous voices”. As a result, mining companies often don’t know who they need to consult when they want to get authorisation for mining activity on communally owned land.
Mabasa, who was a member of the Presidential Panel on Land Reform, told Business Day that while the report by the panel says it is not possible to address issues of land reform without considering the influence of the mining industry, there has been little movement in terms of the legislative reform needed to address the problem.
In its report to the president, the panel said judicial precedent exists that emphasises the rights of holders of informal rights to land in terms of the Interim Protection of Informal Land Rights Act. The effect of a previous Constitutional Court judgment was that the department of mineral resources & energy was prohibited from granting prospecting and mining rights to a new entrant in the mining industry “without the free, prior and informed consent of such communities”.
However, while this judgment affirmed the importance of giving a voice to communities with insecure tenure rights, parliament has “failed to give comprehensive and permanent protection to land-insecure communities”.
The panel suggested that parliament must use its powers to reform the property law system to give communal land users legally recognisable and registrable land rights.
Apart from the lack of title deeds, the complexity of the issue is compounded by the fact that much of the communal land areas have not been surveyed, thus perpetuating the false idea that “black people in rural areas use land communally” instead of individually, Mabasa said.
“We need a legal system that will allow individual families to consult directly with companies instead of being represented by community and traditional leaders.”
Sometimes mining companies just go directly to traditional leaders, she said.
“Traditional leaders enter into agreements with mining companies as if they have the authority to decide on land-use issues on behalf of the entire community, but they don’t have this authority.”
This was one of the issues that arose in a recent court case between community organisations in KwaZulu-Natal and a coal miner.
Earlier in May, Pretoria high court judge Noluntu Bam set aside a licence awarded to Tendele Coal Mining (majority owned by Petmin) in 2016 to extend its Somkhele mine situated about 300km southeast of Newcastle, near the Hluhluwe-iMfolozi Park.
Bam ordered the minister of mineral resources & energy to reopen an appeal by several community organisations.
In the judgment, Bam questioned the reported approval for the licence by the local traditional council, saying there were no details about the circumstances under which consent had been granted and no written proof of community consultation.
“Because of a lack of certainty of land ownership, mining companies struggle to get consent from landowners. If SA does not fix the land ownership issue, mining companies applying for exploration and mining rights will continue to run into challenges around community engagement,” Mabasa said.
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