Wild Coast mine fight goes to court
• Test case could have far-reaching effects on state policy and miners
Rural residents of the Pondoland Wild Coast will institute a legal test case in the High Court in Pretoria on Monday that could have ramifications for state mineral resource policy and mining companies nationwide.
The case has been instituted by 128 subsistence farmers and other residents from the Xolobeni/Umgungundlovu area, south of the Wild Coast Sun.
If their case succeeds, it could derail the ambitions of Transworld Energy and Mineral Resources — and miners elsewhere — to extract minerals without consent from communal land owners. This is because mining laws require companies to “consult” communities, but do not require explicit permission from landowners or communities.
The Xolobeni venture, initiated more than a decade ago through Australian-based Mineral Commodities, has sparked opposition from groups concerned about environmental degradation of the Wild Coast. It has also led to divisions and violence among pro-mining and antimining residents. Bazooka Radebe was one of the casualities of the dispute.
In court papers, the 128 residents argue mining will lead to “disastrous social, economic and ecological consequences”.
The case will focus on the legal interpretation of two separate laws: one that aims to promote mining, the other to protect the interests of communal land owners.
Counsel for the residents say the Mineral Resources and Petroleum Development Act of 2002 and the Interim Protection of Informal Rights to Land Act of 1996 were enacted to redress economic and territorial dispossession and to restore land and resources to black people.
“The Informal Rights to Land Act makes it clear that customary communities have a right to decide whether or not development occurs on their land, while the Mineral Resources and Petroleum Development Act requires that the community is consulted before companies can be awarded a mining right — but it does not expressly require that they consent.”
The residents submit both laws must be read to work together, not to conflict. “The only way to do that is to hold that both the Informal Rights to Land Act and the Mineral Resources and Petroleum Development Act apply. The community must be consulted under the Mineral Resources and Petroleum Development Act and must consent in terms of the Informal Rights to Land Act. This is not only the best way to interpret the statutes in light of their purpose, it is the only interpretation that is consistent with international law and that promotes constitutional rights,” the residents argue in court papers.
The Department of Mineral Resources says in responding arguments that the 2002 mining act trumps the 1996 land act, while Transworld submits that the Xolobeni case has farreaching implications and the attributes of a test case. “If granted, it will affect land and mining rights all over the country,” says Transworld, arguing that if the Xolobeni case succeeds this would allow communities to veto any mining unless there was a high degree of pro-mining consensus.
The department argues: “At its core, this application seeks to reinstate the right to sterilise the extraction of national mineral resources by declaring that consent from communities with informal rights to land must be obtained before mining can occur on the land they informally occupy. This would have the effect of resurrecting the old mineral regime, by reviving the extinguished right of consent and in effect giving communities with informal rights to land the ability to sterilise the extraction of national mineral resources.”
The Bench Marks Foundation, which has joined the application, has documented the activities of Lonmin, Anglo Platinum, Impala Platinum, Aquarius, Xstrata and Royal Bafokeng. It said it had been mandated by churches to ensure multinationals respected human rights, protected the environment and that profit was not made at the expense of the marginalised.
Transworld, represented by local businessman Zamile Madiba Qunya, said some residents had sought to paint a picture that his company was complicit in violence at Xolobeni. “We categorically deny these allegations.”
Oxfam SA is to release a report on Monday examining whether communities benefited from the Tormin mining venture in the Western Cape. Tormin is controlled by Perthbased Mineral Commodities, which held a 56% controlling share in the Xolobeni project.
After Radebe’s killing in 2016, Mineral Commodities said it would divest its interest in the Xolobeni project, but in its latest company results it states that “future development and divestment options are under consideration” at Xolobeni.