The troublesome contest between surface versus mineral rights lies at the very heart of the complex issues raised in the Portfolio Committee on Mineral Resources' report on the recommendations of the High Level Panel on the Assessment of Key Legislation and the Acceleration of Fundamental Change, published in Parliament in March.
The Committee had been told by Dr Aninka Claassens, former chairperson of the High Level Panel's working group on land, that mineral rights almost always trumped surface rights even though this was not provided for anywhere in law.
Central to the outcome was the Constitutional Court judgment of 25 October 2018 in Maledu and Others v Itereleng Bakgatla Mineral Resources (Pty) Ltd which ruled that the Mineral and Petroleum Resources Development Act (MPRDA must be applied alongside the Interim Protection of Informal Land Rights Act (IPILRA) to balance the benefits of mining against the constitutional rights of those affected by the mining.
High Level Panel recommendations aim to make it explicit that it is illegal to mine without community consent.
The Concourt effectively ruled that the awarding of mining rights did not nullify occupational rights granted by the IPILRA. The two Acts had to be implemented hand-in-hand based on the principle that decisions by the Department of Mineral Resources on granting prospecting or mining rights should be dependent on the consent of the affected communities.
In the Committee's report, published in Parliament's Announcements, Tablings and Committee Reports of 14 March, the view of the High Level Panel was that many mining deals which involved mining companies and traditional leaders were legally precarious. In its investigation into post-apartheid legislation and its unintended problems and consequences the Panel stated that in terms of the law traditional leaders have no overt powers to sign deals which involve communal land.
The report declares: "State and mining companies have been acting as if the provisions of the abandoned CLRA [Communal Land Rights Act] and TCB [Traditional Courts Bill] are in place, and that IPILRA, which requires consent before anyone is deprived of their informal right to land, does not exist."
Instead what is taken into account are the roles played by government, such as the Departments of Mineral Resources and Rural Development and Land Reform, along with the banks and mining houses, with the result that, "[e]lite interests [were] privileged at the expense of the basic citizenship and property rights of poorest South Africans who bear the costs of damaged environment and lost rural livelihoods."
Claassens had provided testimony to the Committee from residents of mining areas describing the disruptions caused in their lives and livelihoods by mining, and said this was compounded by some traditional leaders who have assumed ownership of communal property and therefore the right to enter into commercial deals without consulting their populations. The report indicated that the forced removals of apartheid effectively continued in the wake of these deals.
The Committee report confirmed that IPILRA gives effect to sections 25(6) and 25(9) of the Constitution to "protect those whose tenure is legally insecure because of past racially discriminatory laws and practices. In terms of IPILRA, no person or community can be deprived of informal rights to land without their consent," except through a process of expropriation.
It was in this context that the Panel listed proposed amendments to the MPRDA. The Committee report lists the HLP recommendations, which aim to make it explicit that it is illegal to mine without community consent under customary law and that the MPRDA should be read concurrently with the IPILRA.
The Panel's recommendation state:
Where mining has already taken place on communal land and the directly affected community has not benefitted, the MPRDA must provide for compensation for individuals, households and communities to be calculated to put affected persons in the position that they would have been in had the mining not
The MPRDA must be amended to ensure that both revenues from mining-related activities and opportunities generated by such mining activity are shared in an equitable and transparent manner amongst people whose land rights are directly
The MPRDA must be amended to include clear and binding financial and administrative protocols for entities that purport to represent community interests and companies that do business with them, including accountability mechanisms that align with customary law principles of transparency and
The MPRDA must be amended to provide for a Charter to protect and promote customary and artisanal small- scale miners, and set a framework for the participation of communities in the sustainable and equitable exploitation of the resources of their communal
Section 47 of the MPRDA (Minister's Power to Suspend or Cancel Rights, Permits or Permissions) must be amended to expressly provide for the suspension or cancellation of mining rights where a company has significantly failed to meet its Social and Labour Plan (SLP) and B-BBEE commitments. This is provided for in the MPRDA, but has never been used.
The MPRDA must also be amended to establish a mechanism to independently investigate and advise on community grievances in an efficient, democratic, and transparent
The MPRDA must be amended to expressly require that directly affected communities must be invited to negotiate and seek agreement on any mining
The MPRDA must be amended to expressly require compliance with IPILRA as a condition for the grant of a mining-related right.
The MPRDA must be amended to specify the minimum information to be shared with community members, including full mining right applications and environmental impact assessments, prior to any decision to accept mining under
The MPRDA must be amended to provide that a mineral-right applicant must, at its own expense, invite the community to appoint an independent expert(s) of their own choosing to assist in the IPILRA negotiation in communal
The MPRDA must be amended to provide that where more than one community is affected, each shall have the right to independently decide whether to grant or refuse its
Where mining requires the relocation of specific community members' homes, a requirement must be added to the MPRDA that the majority of those to be relocated must consent to the mining
The MPRDA must provide that no person or community may be relocated to enable mining unless such relocation is unavoidable. Where relocation is unavoidable and consent is granted, remedies and compensation must be clearly
Alternative land must be the default compensation and people must be offered living conditions equal to, or better than, their conditions prior to the
Cash compensation must be based not on market value, but must also take into account the effective value of resources such as ploughing and grazing land, water access and cultural value.
Should mining commence or a right be granted without the consent of the community, that community shall have the right to set aside the license and to be paid compensation for the full damages suffered, or to consent to the mining retrospectively through the process to be set out in the MPRDA, including the negotiation of compensation, and to recover all compensation that would have been owed to it had the community's consent been received from the
Communities should have a right to revoke their consent should mining activities be conducted in a manner that is contrary to the MPRDA and its regulations, with communities entitled to compensation for the full damages suffered by all mining
Claassens was reported as saying that the Maledu judgement was supported by an earlier Maccsand judgment in which the court ruled that a mining right was subject to any other laws bearing on such a right. She also cited the Xolobeni High Court Judgment delivered by the Gauteng High Court in November last year in Baleni and Others v Minister of Mineral Resources and Others. This ruling endorsed the principle within IPILRA confirming Free Prior and Informed Consent, and said it superseded the notion of "meaningful consultation" as stipulated in the MPRDA. The Minister has appealed this aspect of the judgment.
According to the Committee report, Claassens warned that a complicating factor was the pending Traditional and Khoi-San Leadership Bill (TKLB). This piece of proposed legislation supports decisions taken by "a majority of the relevant community members present at the consultation". She raised concern that the reference to "a majority of relevant community members" presented a problem because the TKLB does not start with land rights holders, as the IPILRA does. It starts with councils and traditional leaders who represent the traditional communities that were in the past identified as "tribes" under apartheid legislation.