Grace Maledu and Others v. Itereleng Bakgatla Mineral Resources (Pty) Limited and Another  ZACC 41
The South African Constitutional Court upheld an appeal by thirteen families of the Lesetlheng community who had been facing mining-induced eviction from land they purchased a century ago that had remained in trust for them due to racially discriminatory laws forbidding them from owning it. The community sought to enforce their informal land rights under the constitution and the Interim Protection of Informal Land Rights Act (IPILRA), as well as their right to be consulted under the Minerals and Petroleum Resources Development Act (MPRDA).
The Court held that the mining companies had failed to consult, negotiate with, and seek the consent of the informal land rights holders, as required by law.
The Lesetlheng community applicants brought this case before the Constitutional Court of South Africa on appeal from a High Court order evicting them from their farm. The Lesetlheng community is a subset of the larger Bakgatla-Ba-Kgafela community. The Lesetlheng communities’ ancestors purchased the farm in question in 1919, but owing to the racially discriminatory laws at the time, the ownership of the farm could not be transferred to the Lesetlheng community. Instead, the title deed stated that the property was held in trust by the state on behalf of the entire Bakgatla-Ba-Kgafela community.
Post-apartheid, the South African constitution attempted to rectify the impacts of discriminatory land laws. Section 25(6) of the constitution states: “a person or community whose tenure of land is legally insecure as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to tenure which is legally secure or to comparable redress.” The 1996 Interim Protection of Informal Land Rights Act (IPILRA), enacted to implement that constitutional provision, defines informal rights to land and, in § 2, provides that “no person may be deprived of any informal right to land without his or her consent.” The Minerals and Petroleum Resources Development Act (MPRDA) vests control of all mineral and petroleum resources in the South African government, which is responsible for granting mining rights. However, the MPRDA requires a mining rights holder to consult with those possessing surface rights to the land before mining activities may begin.
The families’ appeal argued that: a) the companies could not mine without the Lesetlheng community’s consent, given their informal land rights under § 2 of IPILRA; and b) the community’s rejection of mining on land to which they held informal surface rights meant the companies needed to exhaust the mechanism provided by § 54 of the MPRDA, which requires negotiation of compensation before mining commences. The companies affirmed they had met with the Lesetlheng community, explained the mining process, and assessed how it would affect them, claiming that there had been no objections to the project by the community. Further, they argued that the MPRDA does not require an exhaustion of remedies prior to bringing the matter before a court.
The Constitution Court unanimously held that, notwithstanding a Bakgatla-Ba-Kgafela community meeting resolution regarding a lease agreement, § 2 of the IPILRA was not satisfied because a meeting with the governance structures of the broader Bakgatla-Ba-Kgafela community was neither a meeting with the actual rights holders to the farm (the Lesethleng community), nor did it afford those rights holders a reasonable opportunity to meaningfully engage in negotiation. Additionally, the Court held that § 54 of the MPRDA balances the interests of surface right holders with those of mining right holders, and, as such, the language of § 54 is mandatory. Therefore, the remedies set forth in § 54—in essence, state-mediated negotiation prior to the commencement of mining—should be exhausted before the issue is brought to court. The mining companies had not complied. Consequently, the applicants were deprived of their informal land rights in violation of the IPILRA, and the MPRDA had not been followed.
The Court upheld the community’s appeal and vacated the eviction order.
This decision vindicates the Lesethleng community’s informal land rights, effectively requiring the mining companies to seek their consent and negotiate regarding compensation and the manner of their potential relocation prior to any mining activities.
Despite constitutional protections and provisions of acts such as the IPILRA and the MPRDA, mining companies, regulators, and traditional governance authorities in South African have often omitted affected individuals and communities from consultation processes concerning mining operations. Companies have also often begun mining during negotiations with those affected, thereby undermining the process envisioned by law and reducing the value of the land. The ruling stands for the proposition that mining companies and government regulators must engage directly with those actually affected through their traditional leaders, not via supposed proxies.
For their contributions, special thanks to ESCR-Net member: the Program on Human Rights and the Global Economy (PHRGE) at Northeastern University.