03 Dec Land Rights versus Mining Rights: What Mining Companies need to know
Land Rights versus Mining Rights: What Mining Companies need to know
Conflict of use between holders of mining titles and surface owners is not a new phenomenon. Even before the Mineral and Petroleum Resources Development Act, 2002 came into force in 2004, the mining sector in South Africa was rigged with this tension. On the one hand, an owner or a lawful occupier of land seeks to have control and enjoyment of the land; and on the other hand, a mining title holder seeks to vindicate his statutory right to access and to mine or prospect the very same land.
In light of this tension, the recent Constitutional Court judgment Maledu & Others v Itereleng Bakgatla Mineral Resources (Pty) Limited and Another is an important judgment for the mining sector as it has established legal precedent which mining companies and communities need to be aware of prospectively.
Briefly, Itereleng Bakgatla Mineral Resources was granted mining rights on a farm which was registered under the Minister of Rural Development and Land Reform (the “Minister”), who held the land as a trustee on behalf of the Bakgatla-ba-Kgafela community. The community was constituted by Lesetlheng village represented by Maledu (the “Applicants”) as the beneficiaries. The land was registered under the Minister by virtue of previously discriminatory policies and practices that precluded black people from owning land. The Applicants were occupying the land and this land was used for residential and farming purposes by the Bakgatla-ba-Kgafela community.
Itereleng Bakgatla Mineral Resources concluded a surface lease agreement in respect of the land with the Bakgatha Ba Kgathlela Tribal Authority and the Minister and preparations for full-scale mining operations on the land commenced. In response to this, the Community obtained a spoliation order against the Itereleng Bakgatla Mineral Resources (Pty) Limited and Pilanesberg Platinum Mines (Pty) Limited (the “Respondents”). In turn, the Respondents approached the High Court for an order seeking to evict the Community from the land which eviction order was obtained. Because the leave of appeal was refused at the High Court and the Supreme Court of Appeal, the matter went straight to the Constitutional Court.
The Constitutional Court held that where the lawful occupier of the land refuses to allow a mining title holder access to the land, the process in section 54 of the MPRDA must be followed. The mining title holder does not have the option of approaching a court first for an interdict or an eviction order or any other common law remedy until the internal process in section 54 has been followed.
As an ancillary issue, the Constitutional Court found that the Bakgatla-ba-Kgafela community were a community in terms of the Interim Protection of Informal Land Rights Act, 1996 (“IPILRA”) and as such the Community cannot be deprived of its land without its consent. The Court held that the exercise of mining rights amounts to a deprivation which requires the Community’s consent under IPILRA.
Following this judgment, mining companies need to know the following:
- Where a community refuses access on land where a mining title has been granted, the mining company must follow the process in section 54 of the MPRDA.
- Where there is refusal by such community, the mining company is precluded from utilizing any common law remedies including interdicts and evictions orders.
- If the community is a community as defined in IPILRA, consent is required in terms of IPILRA before the mining operations commence.
- It is not sufficient to merely engage and to conclude agreements with the Tribal Authority without consulting and engaging the lawful occupiers or owners of the land.
- Communities will rely on this judgment in negotiating any surface use agreements in respect of the land.
Athi Jara, Director at LNP Attorneys Inc.
Mihlali Sitefane, Senior Associate at LNP Attorneys Inc.
Bongani Memani, Candidate Attorney at LNP Attorneys Inc.