Land grabs by mining companies that dispossess communities of their land and mineral rights are still a fairly murky legal issue, despite the 2018 North Gauteng High Court ruling in favour of the Eastern Cape’s Xolobeni community.
In recent weeks, there have been a number of news reports about people occupying land in various parts of South Africa. This is, of course, nothing new. We’ve had land grabs before, and I believe these will continue as long as many South Africans lack access to land or secure tenure over it.
The South African customary land rights are currently informal. Thus, in the absence of permanent legislation to safeguard customary landholding, the Interim Protection of Informal Land Rights Act fills this gap. However, the IPILRA is merely a three-page piece of legislation that arguably falls short of protecting the land rights of over 17 million South Africans.
In coming to a decision, Judge Annali Basson particularly emphasised that the Department of Mineral Resources , which is responsible for granting mineral licences, lacked authority to grant mineral rights unless the relevant provisions of the IPILRA had been complied with. Although consent and consultation are not mutually exclusive, the court rightfully ruled in favour of the community, i.e. allowing the community to consent before mining ensued on their land.First, the court erred in assuming that the DMR is a party to the consultation and consent proceedings. The state, through the DMR, is merely the custodian of mineral and petroleum resources “… on behalf of the nation” , and is therefore not a party to negotiations or agreements that take place.
One of our Constitution’s primary roles is to redress the injustices of a past that left black people without land and secure tenure over it. The implementation of this objective is facilitated by various pieces of legislation that seek to secure the land tenure of previously dispossessed people.
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