INFORMAL LAND RIGHTS: WHAT DOES THIS MEAN FOR HOLDERS OF MINING RIGHTS? February 2019

By ITUMELENG MUKHOVHA, Published in MINING | ENERGY | INFRASTRUCTURE FEATURE

The current clamour for redistribution of land in South Africa has heightened an interest in land reform and placed raging socio-political discourse centre stage.

Although mining is one of the major contributors to the South African economy, it goes without saying that the granting and execution of a mining right represents an invasion of a landowner's right of use and enjoyment of the surface. The provisions of s5(3) of the Minerals and Petroleum Resources Development Act (MPRDA) echo two fundamental common law principles that foster the co-existence of the mining right holder to access the land to which the mining right relates and the right holder's obligation to cause the least possible inconvenience to the landowner. Although our law tries to reconcile, as far as possible, these competing rights, a situation may arise where the conflict of the rights is insoluble. For instance, when the landowner and the mining right holder are unable to enjoy their respective rights without clashing interests, there is no room for the simultaneous exercise of the rights of both parties.

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Accordingly, the purpose of the different requirements relating to notification and consultation, as underscored by the MPRDA, is to determine whether the holder of the mining right can be accommodated if the mining activities interfere with the landowner's right to use the property concerned. In Maledu and Others v Itereleng Bakgatla Mineral Resources Proprietary Limited and Another (Maledu), the members of the Lesetlheng village community and holders of informal land rights under the Interim Protection of Informal Land Rights Act (31 of 1996) (IPILRA), cited as the Applicants, contended that they are true owners of the Farm Wilgespruit 2 J.Q. in the North West Province (farm), and that in terms of the law Itereleng Bakgatla Mineral Resources Proprietary Limited and Pilansberg Platinum Mines Proprietary Limited, cited as the Respondents, were required not only to notify them of their application for a mining right but also to adhere to the consultation process in relation to such an application. In contrast, the Respondents argued that upon the award of the mining right, the Applicants' informal land rights were terminated in accordance with s2 of the IPILRA. Accordingly, the Applicants' occupation of the farm was unlawful. The Respondents argued that s54, which is aimed at striking a balance between the surface rights of the landowner and the rights of the mining right holder, only applies where the occupation is lawful but as the applicants were occupying the farm unlawfully, they were under no obligation to comply with the provisions of s54 of the MPRDA before approaching a court.

Mindful of a past characterised by a legacy of land dispossession, insecure land tenure, historically contested customary ownership of land and racially discriminatory laws and practices, the Constitutional Court emphasised that the Constitution places a premium on the absolute need to redress the social injustices of the past and entitles any person or community whose tenure of land is legally insecure as a result of past racially discriminatory laws, to a tenure which is legally secure or to comparable redress. The purpose of the IPILRA (as is evident from its preamble) is to provide secure tenure to historically disadvantaged communities and to protect people from being deprived of an informal right to land, and to ensure that communities have a right to decide what should happen to the land in which such communities have an interest.

The implication of the Maledu judgment is that the MPRDA cannot be read in dissonance with the applicability or requirements of other statutes such as the IPILRA that have an impact on mining activities. It follows that the granting of a mining right does not nullify the occupational rights of informal rights holders under the IPILRA and resultantly, absolve the mining right holders from taking all reasonable steps to exhaust the s54 process before approaching a court. In fact, holders of informal rights under the IPILRA cannot be deprived of their rights without either consent or expropriation. Accordingly, the holder of a mining right will not be entitled to commence mining activities on the land in question before exhausting the process set out in s54, which includes paying compensation to the lawful occupier - such as the holder of informal rights to land.

Mukhovha is an Associate, Corporate/M&A Practice, Baker McKenzie (South Africa).

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