orion minerals

The current clamour for redistribution of land in South Africa has heightened an interest in land reform and rights – placing raging socio-political discourse at the 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 a grave invasion of a landowner’s right of use and enjoyment of the surface.

AUTHOR: Itumeleng Mukhovha, Associate, Corporate/M&A Practice, Baker McKenzie Johannesburg

In this regard, the provisions of section 5(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 obligation of the right holder to cause the least possible inconvenience to the landowner.

Although our law tries to reconcile, as far as possible, competing rights of the owner of the surface rights and holder of a mining right, a situation may arise where the conflict of the rights is insoluble.

For instance, when the landowner and the holder of the mining right are unable to enjoy their respective rights without clashing interests, there is no room for the exercise of the rights of both parties simultaneously.

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 insofar as 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 Itereleng Bakgatla Mineral Resources Proprietary Limited and Pilanesburg Platinum Mines Proprietary Limited, cited as the respondents, were in terms of law 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 application.

In contrast, the respondents sought to argue that the applicants’ informal land rights were terminated in accordance with section 2 of the IPILRA upon the award of the mining right and accordingly, the applicants’ occupation of the farm was unlawful.

Bearing such submissions, the respondents argued that section 54, 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 given the unlawful occupation of the applicants of the farm, there was no obligation on the respondents to comply with the provisions of section 54 of the MPRDA prior to 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 high 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 result of past racially discriminatory laws, to a tenure which is legally secure or to comparable redress.

In this regard, the purpose of the IPILRA (as is evident from its preamble) is to provide secure tenure to historically disadvantaged communities as well as to protect persons from the deprivation of informal right to land and 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 holder of the mining right from taking all reasonable steps to exhaust the section 54 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 section 54, which process includes the payment of compensation to the lawful occupier such as the holder of informal rights to land.