Risk Management
had informal and not formal land rights). In essence, the judgment
uses the premise that the mere granting of a mining right constitutes
dispossession and deprives the people of the right to use the land.
This interpretation does not dovetail with another mining sector
judgment issued just a few weeks before the Xolobeni ruling: the
Constitutional Court ruling in the case of Maledu and Others vs
Itereleng Bakgatla Mineral Resources.
Finding common ground
In the Maledu matter, the Constitutional Court affirmed the
constitutional right to protection of people whose tenure is legally
vulnerable because of past racially discriminatory laws and practices
(in this case, former homeland dwellers who had no recorded rights
to their land).
The Court noted that the MPRDA does not trump other
legislation. It also observed that the granting of a mining right is a
deprivation only if the land is interfered with in such a manner that
the people concerned cannot use it.
Thus, a mining right and a land owner’s right can co-exist, and there
is a standard consultation process that provides for this. However, if
a mining activity is so invasive that it amounts to a deprivation of the
right to land, a different process must be followed.
Populist rhetoric by politicians in South Africa has resulted in more radical
communities.
The Xolobeni judgment, by contrast, not only argues that the
granting of a mining right in itself deprives the people of the right
to use it, but creates two parallel regimes of consulting land owners:
one for the holders of informal rights and another for the holders
of formal rights. Why should they be treated any differently?
Finding common ground appears to be the preferred approach of
the South African government, as evidenced in the address that
Minister for Mineral Resources, Gwede Mantashe made at the
opening of the 2019 Mining Indaba in Cape Town on 4 February.
“Mining in South Africa offers excellent economic opportunities,
but it must be done in a socially responsible way with decent pay,
labour rights and a safe workplace, all protected by strong trade
unions,” Minister Mantashe said. “The sector must ensure that
mining takes place with a strong focus on the environment and
on the interests of all stakeholders, including those who live in
mining areas.”
This seems to support the notion that a mining right and a land
owner’s right can indeed co-exist, within the confines of the law
and without pleasing one party at the expense of the other.
The following panellists took part
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34 AFRICAN MINING JULY - AUGUST 2019
Chris Green – Partner, Tanzania
Claire Tucker – Head of Public Law and Regulatory,
South Africa
Rainbow Field – Director of International Legal Services,
Kenya
Wandisile Mandlana – Partner, South Africa b
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