South Africa: Communities win major court victory

Published by MAC on 2018-10-28
Source: Daily Maverick, Legal Resources Centre

The right to Free and Prior-informed consent (FPIC)

Ruling "fundamentally changes power dynamics" as communities win big in ConCourt

By Greg Nicolson

Daily Maverick

26 October 2018

Representatives of mining communities believe Thursday's unanimous Constitutional Court ruling on mining in Lesethleng, North West will fundamentally shift the power dynamics between mining-affected communities and companies.

"The existence of a mineral right does not itself extinguish the rights of a landowner or any other occupier of the land in question," said the judgment penned by Acting Judge Xola Petse.

Petse began the judgment by quoting Franz Fanon on the dispossession of land under colonialism and added, in his own words, "Thus, strip someone of their source of livelihood, and you strip them of their dignity too".

The Lesethleng Community Village bought its farm in 1919 but due to racially discriminatory laws it had to be registered in the name of the native commissioner, who held it in a trust for the leader of the Bakgatla-ba-Kgafela.

Itereleng Bakgatla Mineral Resources (IBMR) and Pilanesberg Platinum Mines (PPM) were granted a mining licence in 2008 by the department of mineral resources and a surface lease agreement was signed with the Bakgatla-ba-Kgafela traditional authority.

The Constitutional Court on Thursday overturned an eviction order that would have forced the Lesethleng community off its farming land. The community was denied leave to appeal the order in both the North West High Court and Supreme Court of Appeal.

"With eviction hovering ominously over their heads, the livelihoods of the applicants and their families is likely to be severely and adversely affected if not perpetually ruined. This matter is of great public importance, transcending the immediate interests of the litigants in this case," said Petse.

The judgment said the companies had failed to meaningfully consult the community according to requirements in the Mineral and Petroleum Resources Development Act (MPRDA) and that the Interim Protection of Informal Land Rights Act (IPILRA) must be considered,

The community argued that IPILRA says land in communal areas can only be deprived if the majority of those affected agree to it and the court's application of the law is a victory for mining communities.

Louise du Plessis, land housing programme manager at Lawyers for Human Rights, which represented the Lesethleng Village Community, said mining companies have often pushed residents off their land or applied for a simple eviction order despite whether communities consent or not.

Some occupiers of land in communal areas have been left with nothing after they were moved and then have to apply for compensation retrospectively, she added. Members of a farm adjacent to the Lesethleng community were evicted and lost their land, largely because they couldn't afford legal assistance.

"Those days are over," said Du Plessis.

Bakkgatla-ba-Kgafela leaders signed an agreement to lease the mining companies Lesethlen' land and Du Plessis said traditional leaders often sign mining deals against the wishes of those directly affected by the plans.

"The consultations now will need to be with the real owners or occupiers of the land," she said.

The judgment will require companies to go to further lengths to get community consent to begin mining.

"It means that no mining can commence until we either reach an agreement or the land is expropriated," said Johan Lorenzen from Richard Spoor Attorneys.

He said the judgment set â "massive precedent" as it emphasised the role of communities in deciding whether mining operations can proceed".In my view, it fundamentally changes the power dynamics" he said.

Richard Spoor Attorneys represents the Xolobeni community's Amadiba Crisis Committee (ACC), which has fought against mining on the Wild Coast and went to court in April to argue that communities should first have to give consent, rather than mere consultation, before companies are allowed to mine an area.

The ACC in April argued that the rights defended under IPILRA must be upheld when it comes to mining, which was largely confirmed on Thursday, meaning a much higher standard has been set before companies can move into areas like Xolobeni.

Bench Marks Foundation executive director John Capel listed a number of examples of communities being moved off their land into worse circumstances as mining companies moved in. Bench Marks regularly reports on the social, labour and environmental impact of mining.

"It's an excellent judgment that's going to go a long way for communities that are unprotected and relocated all the time into dismal conditions" said Capel.

The Legal Resources Centre represented two parties who were amici curiae to the case and in a statement on Thursday it said: "By giving authority to the informal and customary land rights, as found in IPILRA, the court has upheld section 25 of the Constitution and furthered the role of customary law in protecting the tenure of communal land dwellers. There are many communities in a similar position who will benefit from the development of the law in this regard."

PPM's parent company Sedibelo Platinum Mines said it is studying the judgment, according to a Reuters report.

Department of mineral resources spokesperson Ayanda Shezi said government is still studying the judgment before announcing its position.

The ruling puts Mineral Resources Minister Gwede Mantashe in a tight spot. In the Xolobeni saga, Mantashe has repeatedly stated his will to engage the community while at the same time emphasising the need for mining and how it can help promote the economy and develop poor areas.

In the Xolobeni court case, lawyers for Mantashe argued that the need to develop and transform the economy should trump the rights of locals to consent as to whether or not mining proceeds.

The department of mineral resources can still bypass communities who don't want mining in their areas by expropriating the land if arbitration processes fail.

Du Plessis said it's unclear whether government would try to take such a bold step.

---

Constitutional Court promotes customary land rights in dismissing
eviction of Lesetlheng community

Legal Resources Centre Press Release

25 October 2018

Today, 25 October 2018, in the Constitutional Court, judgment was handed
down which recognises the informal or customary land rights of the
Lesetlheng community, who were threatened with eviction after Itereleng
Bakgatla Minerals Resources (Pty) Limited brought an eviction
application at the Mahikeng High Court. The Court upheld the community’s
appeal after they lost in the High Court by recognising that their
informal land rights are protected by the Interim Protection of Informal
Land Rights Act of 1996 and that they must consent to the deprivation of
these rights.

The Legal Resources Centre represented two amici curiae, Mr Mdumiseni
Dlamini on behalf of Baleni applicants in a similar case, and the Land
Access Movement of South Africa (LAMOSA), who made submissions on the
customary law of the Bakgatla Ba Kgafela community, under which the
community falls, and the content of customary law; respectively.

The facts are briefly that Itereleng was registered by the Traditional
Council of the Bakgatla Ba Kgafela in 2003 and was granted a mining
right and surface lease agreement following two meetings in which
members of the Lesetlheng community were present. In 2014, when mining
operations were underway, the community brought at spoliation
application against the mine to get it to cease operations, which were
affecting the land on which they were farming. The mine then brought an
application to evict the community.

The mine won the eviction application and the case was appealed to the
Constitutional Court. The LRC brought applications to have our clients
admitted at amici curiae, which were accepted.

In our submissions brought on behalf of Mr Dlamini and LAMOSA, we argued
that IPILRA must be read harmoniously with the provisions of the Mineral
and Petroleum Resources Development Act (MPRDA), under which the mining
right was granted. Further, that no person can be deprived of their
rights under IPILRA, that is, their informal or customary land rights,
without their consent. The granting of a mining right constitutes a
“deprivation” in this regard.

Lastly, we brought submission on what consent is – that it must be Free,
Prior and Informed – which is in line with our international law
obligations.

The Court, in finding for the applicants and upholding their appeal,
found that section 25(6) provides that those who have insecure tenure
must be given legally secure tenure or comparable redress.

The Court based much of its findings on the IPILRA, supporting our
argument that it must be read together with the MPRDA: “…each statute
must be read in a manner that permits each to serve its underlying purpose.”

The Court found that the existence of a mineral right does not itself
extinguish the rights of a landowner or lawful occupier. IPLIRA provides
for the security of tenure of vulnerable people and it is the
responsibility of the mining company to comply with it. The Court found
that there is no evidence to support the mine’s assertions that the
community were deprived of their land rights when the resolution to mine
was made.

In concluding, the Court found that the remedies available to the mine
when there is a dispute, which are contained in the MPRDA, were not
sufficiently exhausted.

By giving authority to the informal and customary land rights, as found
in IPILRA, the Court has upheld section 25 of the Constitution and
furthered the role of customary law in protecting the tenure of communal
land dwellers. There are many communities in a similar position who will
benefit from the development of the law in this regard.

ENDS

NOTE: For more information please contact:

· Teresa Yates (Deputy National Director) teresa@lrc.org.za 076
299 2212
· Claire Martens (Communications officer) claire@lrc.org.za 082
470 1187

The LRC is an independent, non-profit, public interest law clinic, which
uses law as an instrument of justice to provide legal services for the
vulnerable.