Lawyers press for Xolobeni consent clause
The Umgungundlovu Community in Xolobeni is challenging the Minister of Mineral Resources’s powers to grant mining rights without their consent. If granted, the application will establish that mining rights may not be granted on communal land anywhere in South Africa without community consent.
On Tuesday in the Pretoria High Court, the Legal Resources Centre and Richard Spoor Attorneys filed papers in a significant land rights case being brought on behalf of the community.
They are seeking a declarator from the High Court stating that the Minister of Mineral Resources may not grant a mining right in Xolobeni without the consent of the Umgungundlovu community. To date, the Department of Mineral Resources has refused to accept that the community’s consent is required.
The application includes 129 applicants, including the iNkosana (head woman) of the community, community elders, representatives of 69 households residing within the mining area and its immediate vicinity, and the Bench Marks Foundation.
The Bench Marks Foundation has joined the application to introduce evidence on the severely negative impacts of mining on communities when consent is not required.
Affidavits from community members and experts give detailed evidence of the customary practices of the community and how decisions regarding land are made within the community. The first applicant, iNkosana Duduzile Baleni, explains the Umgungundlovu Community’s processes of making decisions regarding land in detail. Community and expert evidence is lead regarding the significance of the land to the community, and the impact that mining will have on community agriculture, access to the sea, tourism development, graves, and way of life.
The declarator application has been launched following Transworld Energy and Mineral Resources SA (Pty) Ltd (TEM) (a subsidiary to Mineral Commodities Ltd [MRC]) application to mine in Xolobeni in the Eastern Cape.
The Umgungundlovu community are asking for the following declarator relating to land rights under customary communities:
It is declared that the First Respondent lacks any lawful authority to grant a mining right in terms of section 23, read with section 22 of the Mineral Petroleum Resources Development Act 28 of 2002, over land anywhere in the Republic of South Africa owned or occupied under a right to land held in terms of any tribal, customary or indigenous law or practice of a tribe, as defined by the Interim Protection of Informal Rights to Land Act 31 of 1996, unless the provisions of Interim Protection of Informal Rights to Land Act 31 of 1996 have been complied with.
Alternatively, the Community want the declarator to state that the minister may not grant a mining right without the terms of compensation being agreed upon and paid before the mining right is granted.