6 November 2018

South Africa: Constitutional Court Protects Land Rights

Photo: Stefan Schäfer/Wikipedia
Constitutional Court of South Africa.
press release

South Africa's highest court has delivered two landmark decisions protecting women's rights to equality and land ownership, as well as the rights of communities living in mining areas.

The first ruling ensured that an elderly woman couldn't be evicted by her brother from her home where she lived for more than 30 years. In its October 30 ruling in a case called Rahube v Rahube, the Constitutional Court unanimously upheld a lower court's finding that a key section in South Africa's Upgrading of Land Tenure Rights Act violates women's right to equality and as such is unconstitutional. The apartheid-era law, which upgraded land tenure rights to ownership, only recognized men as the head of the family and as legal land owners. This particularly impacted black women who were unable to own property during apartheid.

On October 25, the court unanimously held that a mining company could not evict a community of people from their lands without their consent, or without compensating them for their lands. In the case of Maledu and Others v Itereleng Bakgatla Mineral Resources (Pty) Limited and Another, the Constitutional Court overruled an eviction order, issued by a lower court to a mining company, permitting it to evict 13 families from a farm in the Lesetlheng Community, North West Province, where the company had mining rights. Significantly, the court upheld a provision in the Interim Protection of Informal Land Rights Act, a law enacted to protect land rights after apartheid, which says that no person may be deprived of any informal right to land without his or her consent.

This judgment changes the power dynamics between mining companies and communities by making clear that communities have a tangible interest and say in what happens to their land. It will likely benefit communities across South Africa impacted by mining, including the Xolobeni community in the Eastern Cape province who earlier this year asked the Pretoria High Court to rule that the South African government cannot issue a mining license without the community's consent.

The South African Parliament should immediately act to give effect to these strong, rights-respecting judgments, reforming the unconstitutional laws while authorities work to ensure that communities in mining areas and women land owners enjoy their full rights as identified and protected by the court.

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