Grace Maledu and Others v. Itereleng Bakgatla Mineral Resources (Pty) Limited and Another [2018] ZACC 41

Nature of the Case

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.

Enforcement of the Decision and Outcomes

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.

Significance of the Case

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.

Groups Involved in the Case

• Legal Resources Centre filed an amicus