Court’s ruling entrenches the right of landholders to determine their fate

For centuries black people have been vulnerable to unilateral decisions by traditional leaders and state officials

The judgment recently handed down by the Constitutional Court in Maledu and Others vs Itireleng Bakgatla Mineral Resources comes after years of the constitutionally protected land rights of South Africans living in the former homelands being ignored by the department of mineral resources, traditional leaders and mining companies. The applicants were called the Lesetlheng Village Community. They have been fighting for more than a decade to protect land near Rustenburg that their ancestors purchased almost 100 years ago. The community was finally vindicated by October’s unanimous judgment, which held that the Mineral & Petroleum Resources Development Act requires a mining rights holder to comply with all applicable legislation in the exercise of those rights. That includes the Interim Protection of Informal Land Rights Act, which requires that the holder of an informal land right must be consulted and give his or her consent before being deprived of that right.

Lesetlheng village falls under the jurisdiction of the Bakgatla-ba-Kgafela traditional community. Their forebears in 1919 bought Wilgespruit farm. But racially discriminatory policies and practices meant the land could not be registered in the names of the 13 families who bought it. Instead it was registered in the name of the state on behalf of the Bakgatla-ba-Kgafela “tribe”. This was common at the time. It was the only way black people could buy land, particularly in the former Transvaal. Even so, there was an understanding between the Lesetlheng purchasers and the rest of the Bakgatla-ba-Kgafela community that they would exercise exclusive control over the farm as the actual purchasers of the land.

The facts of the case are intimately linked to the history of denying black South Africans the dignity of being able to own land individually or as families. Instead they were forced to affiliate with an officially recognised “tribe”. These were under the control of a traditional leader who was recognised by the colonial state. Practices and laws such as the Native Administration Act of 1927 and the Bantu Authorities Act of 1951 undermined the land rights of black people by vesting land in “tribes” that were inextricably linked to traditional leaders who derived their powers and validity from the state making it impossible for people to hold traditional leaders to account.

The result was that both private ownership and the customary law land rights of individuals, families and subgroups were disregarded. Land administration was centred in the state and traditional leaders, with no recognition of the nuanced nature of the rights vested in the people who used and occupied the land. The various levels at which control and decision-making authority was exercised in terms of many of these systems were ignored. But layered decisionmaking processes that centre on the rights and needs of those who actually use and occupy land continue to function in practice.

Past distortion and lack of recognition of the systems in terms of which black people hold rights to land and administer that land has left millions of South Africans with legally insecure tenure to land. For centuries they have been vulnerable to having their land taken from them by the unilateral decision of traditional leaders or state officials a practice that continued in spite of the transition to democracy in 1994.

This is the reality and context the constitution sought to address. It recognised that people who have had their rights to land denied and distorted are entitled to constitutional and statutory protection. Section 25(6) and (9) of the constitution requires that a person or community that has insecure tenure to land as a result of past racially discriminatory laws is entitled to secure tenure protected by legislation. As an interim measure parliament adopted the Interim Protection of Informal Land Rights Act in 1996 to protect rights contemplated in section 25(6) while an appropriate and comprehensive legislative framework was developed.

The act recognised customary and other group tenure systems. It provides that no one may be deprived of an informal right to land without their consent. The Interim Protection of Informal Land Rights Act decisively moves away from conglomerating the rights of black people into “tribal” entities. Instead it recognises that informal rights can be held by individuals, groups, subgroups, communities, and parts of communities. It requires that the directly affected holders of the rights in question be consulted, and their consent obtained, before they can be deprived of their rights.

However, in recent years, despite these protections, communities have seen mining rights granted on their land and those rights exercised with no consideration of these constitutionally and statutorily protected rights.

Mining companies, with the go-ahead from the department of mineral resources, continue to treat “communal” land as vesting only in a “tribal” entity that is under the control of a traditional leader. Agreements are concluded with traditional leaders after little to no meaningful consultation with the families directly affected. No attempts are made to obtain the consent of, and determine the compensation for, the people who hold rights to land before operations start, which, in effect, destroy their rights and livelihoods.

The court found that compensation must be determined using the dispute resolution mechanisms in section 54 of the Mineral & Petroleum Resources Development Act before mining starts. Previously, mining companies had been allowed to mine while negotiating compensation, greatly undermining the value of the land and the balance of power within which negotiations took place.

In the case of informal rights holders, the Interim Protection of Informal Land Rights Act must be complied with by engaging with and getting the consent of the holders of these rights when reaching any agreement on the appropriate compensation.

What the Constitutional Court did was confirm that mining companies, traditional leaders and, in allowing it to happen, the departments of rural development and mineral resources have been flouting the law and the constitution. The court put people and their rights back at the centre of the administration of their land, something they have been denied by practice and law for centuries.

It made clear that not only the state but mining companies too are bound by the Interim Protection of Informal Land Rights Act and must therefore consult holders of informal rights to land, and obtain their consent, before they can exercise prospecting or mining rights granted in terms of the Mineral & Petroleum Resources Development Act.

● Booi is a researcher with the Land and Accountability Research Centre in the University of Cape Town’ s public law department.