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Landmark South African Court Ruling Supports Communities Over Mining Companies

October 28, 2018

An October 25 ruling by the South African Constitutional Court over land mineral rights is about to change the balance of power between mining companies and the people forever.

The Constitutional Court Building in Johannesburg, South Africa. Photo: Media Club, CC

The lawsuit, which brought the Lesenthleng Community Village in direct conflict with Itereleng Bakgatla Mineral Resources (IBMR) and Pilanesberg Platinum Mines (PPM), has been carefully watched by citizens and mining companies alike in South Africa.

The case involved a farm the Village bought in 1919. Because of laws seeped in racial discrimination practices of the time, the purchase was recorded in the name of the native commissioner. That commissioner kept it in trust for the leader of the Bakgatla-ba-Kgafela.

In 2008, mining powers IBMR and PPM filed for and were given a mining license by the department of mineral resources. They also received a surface lease agreement with the Bakgatla-ba-Kgafela authorities there.

As their mining interests covered by that lease developed, IBMR and PPM needed to get those living on the affected lands out of their way. They filed for and were granted an eviction order for those people in a lower court.

The Lesethleng Village Community, which had never agreed to be moved off their lands when IBMR and PPM filed for the evictions, filed suit to have the eviction order reversed.

According to Louise du Plessis, land housing programme manager at the firm Lawyers for Human Rights, the firm which represented the Community, this is an age-old practice for mining companies operating in South Africa. They regularly have just removed residents from their land directly or via a conventional eviction order, most of the time with no permission from any of those involved. Often there had been no compensation at all and residents lost their land forever.

In the October 25 ruling, the Constitutional Court unanimously decided against IBMR and PPM and overturned the eviction order.

In the court’s written ruling, Acting Judge Xola Petse said, “The existence of a mineral right does not itself extinguish the rights of a landowner or any other occupier of the land in question.” Quoting Franz Fano’ statement about land seizures under colonialism, Petse emphasized that when you “strip someone of their source of livelihood, … you strip them of their dignity too.”

The ruling also made the important point that, “The existence of a mineral right does not itself extinguish the rights of a landowner or any other occupier of the land in question.” Knowing that the case would be a landmark for many such cases in the country, Petse went on to say in the ruling that, “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 the case.”

The judge further said both companies had failed to properly consult the community as required by the Mineral and Petroleum Resources Development Act (MPRDA) and that the Interim Protection of Informal Land Rights Act (IPILRA) also applies to the current case.

In commenting about the ruling, Johan Lorenzen of Richard Spoor Attorneys called the court’s decision “a massive precedent”. He went on to say that, “It means that no mining can commence until we either reach an agreement or the land is expropriated.”

Sedibelo Platinum Mines, which owns PPM, is reportedly reviewing the judgment before deciding on next steps for the firm.

Copyright: North America Procurement Council Inc., PBC