The response by Minerals Minister Gwede Mantashe to two recent judgments about mining and the land rights of people living in the former homelands has been instructive.
City Press has reported Minister Mantashe as saying that the Pretoria High Court Xolobeni judgment heralds the end of mining in South Africa because rural people will never consent to mining on their land. Mining lawyers have conceded that 90% of new mining applications relate to land in the former homelands. It is well documented that poverty is most deeply concentrated in the former homelands
This begs the question of why poor unemployed people would strenuously oppose mining to the extent of risking their lives in the process. Two recent comprehensive reports provide some context.The first is the 2017 High Level Panel report led by former president Kgalema Motlanthe. The second is the 2018 Human Rights Commission report on mine-hosting communities. The reports lay bare the violence, intimidation,corruption, inequality and poverty that mining continues to reproduce. Mining has had disastrous consequences for rural communities. Little to no consultation with those whose land rights are directly affected, little to no compensation paid to those whose livelihoods are destroyed by mining. The poorest, and thereby the least powerful are left to carry the costs of mining, including permanent environmental and social damage,while massive profits are earned from their ancestral land.
Why is this still allowed in post-apartheid South Africa? The answer is simple. From around the year 2000 government and the mining houses decided to ignore a short law that was enacted in 1996 to protect people whose land tenure rights are legally vulnerable as a result of past racial discrimination. This law – the Interim Protection of Informal Land Rights Act, or IPILRA, gives effect to the right to tenure security contained in sections 25(6) and 25(9) of the Constitution. IPILRA applies throughout the former homelands because people there were denied recorded rights to land they have occupied and used for generations. IPILRA refers explicitly to land rights derived from customary law. This is crucial because black people were denied common law ownership of their land, and the Constitutional Court has since upheld customary ownership of land as full ownership
Both judgments, the Constitutional Court’s October judgment about the Lesethleng community in North West, and the Pretoria High Court’s November judgment about Xolobeni on the Wild Coast say that mining cannot override the constitutionally-required protections spelled out in IPILRA. Basically the minister is up in arms because two courts have said that mining houses, traditional leaders, and government can no longer continue to disregard a law that has been on the statute books since 1996.
IPILRA provides that people may not be deprived of their informal rights without their consent, except by expropriation. Both IPILRA and the MPRDA explicitly provide for the expropriation of land rights where the holders of the surface rights do not consent to mining on their land and it is in the interests of economic transformation to do so. So when the Minister and lawyers who represent the mining houses say that giving communities the right to say no will be the end of mining they are being disingenuous. They are empowered by law to expropriate the surface rights of those who object to mining.
Expropriation is a hassle, however. Until now it has been the practice to pay off traditional leaders and start mining rather than calculate and negotiate the costs of mining for the livelihoods of those whose land rights are directly affected. In this context, the Lesethleng Constitutional Court judgment that compensation has to be determined up front before mining has started and destroyed the value of the land fundamentally changes the balance of power.
Expropriation also means that the courts will monitor the process, including whether mining is actually in the public interest. Far too many mining rights are issued to people who want short-term profits at the expense of permanent damage to rural livelihoods and crucial shared resources like water.
In essence the judgments mean that mining houses will have to offer the people directly affected a fair deal if they want them to consent to mining. When the mining boom shifted to the former homelands many rural communities were keen to welcome the mining houses because of the hope of jobs and development. But the widespread abuses that have been condoned,and to some extent elicited by the Department of Mineral Resources, have turned that hope into despair. Rural people all around South Africa are engaged in life-or-death struggles to protect their land rights and demand accountability from government, traditional leaders and mining houses.
Instead of acknowledging the problems described in the HLP and Human Rights Commission reports, and welcoming the clarity now provided by the Lesethleng and Xolobeni judgments the Minister appears intent on appealing the Xolobeni judgment. He is quoted in City Press as saying that the judgment will lead to corruption because it will enable rural communities to play different mining companies off against one another for their own profit. His assumption seems twofold- that it is government’s sole prerogative to profit from this role, and that communities are somehow incapable of acting in their rational self-interest.
Government and the mining companies have entered into a devils compact to ignore and undermine the property rights and decision-making authority of rural people in order to enrich politically connected BEE partners. They should pause to think about the message that they are sending to the majority of South African about the sanctity of private property and the rule of law.
Are there no mining companies out there who see the judgments not as a threat, but as an opportunity? They provide the chance to stop paying off politicians and traditional leaders and instead identify the families and individuals directly affected by mining and deal directly with them. How expensive can it be to play open cards and offer people alternative land and livelihoods that are attractive enough to make them want to live alongside mining?
Urban South Africans are not paying attention to how Parliament is systematically reproduced structural inequality by enacting laws that deny the citizenship and property rights of those living in the former homelands. A last minute amendment to the controversial Traditional and Khoi-san Leadership Bill that is in the final stages of adoption in Parliament seeks to nullify the impact of the Lesethleng and Xolobeni judgment by empowering traditional leaders to sign deals directly with third parties such as mining houses ‘notwithstanding other laws’.The recent addition of the phrase ‘notwithstanding other laws’ is an attempt to oust the consent requirements of IPILRA that have the Constitutional and Pretoria High Court have now affirmed.
This last ditch and patently obvious response to the judgments will not survive constitutional scrutiny. But a legal challenge to the law will take some years before it reaches the Constitutional Court. In the meantime the looting will continue, and the very people who bore the brunt of forced removals and past dispossession – those living in the former homelands – will lose the residual assets they managed to hold onto until the end of apartheid.
This post first appeared in City Press on 9 December 2018.