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The re­sponse by Min­eral Re­sources Minister Gwede Man­tashe to two re­cent judg­ments about min­ing and the land rights of peo­ple liv­ing in for­mer home­lands has been in­struc­tive. City Press has re­ported that Man­tashe said the Pretoria High Court’s judg­ment on the Xolobeni case her­alded the end of min­ing in South

Africa be­cause ru­ral peo­ple would never con­sent to min­ing tak­ing place on their land. Lawyers have con­ceded that 90% of new min­ing ap­pli­ca­tions re­late to land in for­mer home­lands, and it is well doc­u­mented that poverty is most deeply con­cen­trated in these ar­eas.

This raises the ques­tion of why poor, un­em­ployed peo­ple would stren­u­ously op­pose min­ing to the ex­tent of risk­ing their lives in the process. Two re­cent com­pre­hen­sive re­ports pro­vide some con­text.

The first is last year’s re­port from a high-level panel chaired by for­mer pres­i­dent Kgalema Mot­lanthe. The sec­ond is this year’s re­port from the Hu­man Rights Com­mis­sion on mine-host­ing com­mu­ni­ties. The re­ports lay bare the vi­o­lence, in­tim­i­da­tion, cor­rup­tion, in­equal­ity and poverty that min­ing con­tin­ues to pro­duce.

Min­ing has had dis­as­trous con­se­quences for ru­ral com­mu­ni­ties as there has been lit­tle to no con­sul­ta­tion with those whose land rights are di­rectly af­fected, and lit­tle to no com­pen­sa­tion has been paid to those whose liveli­hoods are de­stroyed by min­ing. The poor­est – and there­fore the least pow­er­ful – are left to carry the costs of min­ing, in­clud­ing per­ma­nent en­vi­ron­men­tal and so­cial dam­age, while mas­sive prof­its are gen­er­ated from their an­ces­tral land.

Why is this still al­lowed in post-apartheid South Africa? The an­swer is sim­ple. From around the year 2000, gov­ern­ment and the min­ing houses de­cided to ig­nore a short law that was en­acted in 1996 to pro­tect peo­ple whose land ten­ure rights were legally vul­ner­a­ble as a re­sult of past racial dis­crim­i­na­tion.

The In­terim Pro­tec­tion of In­for­mal Land Rights Act (IPILRA) gives ef­fect to the right to ten­ure se­cu­rity con­tained in sec­tions 25(6) and 25(9) of the Con­sti­tu­tion. The IPILRA ap­plies through­out the for­mer home­lands be­cause peo­ple in those ar­eas were de­nied recorded rights to land that they have oc­cu­pied and used for gen­er­a­tions.

The IPILRA refers ex­plic­itly to land rights de­rived from cus­tom­ary law. This is cru­cial be­cause black peo­ple were de­nied com­mon law own­er­ship of their land, and the Con­sti­tu­tional Court has since up­held cus­tom­ary own­er­ship of land as full own­er­ship.

The Pretoria High Court’s judg­ment in the Xolobeni, Eastern Cape, case and the Con­sti­tu­tional Court’s judg­ment in the Le­setl­heng, North West, case say that min­ing can­not over­ride the con­sti­tu­tion­ally re­quired pro­tec­tions spelt out in the IPILRA.

Ba­si­cally, Man­tashe is up in arms be­cause the Con­sti­tu­tional Court and the Pretoria High Court have said that min­ing houses, tra­di­tional lead­ers and gov­ern­ment can no longer con­tinue to dis­re­gard a law that has been on the statute books for more than 20 years.

The IPILRA pro­vides that peo­ple may not be de­prived of their in­for­mal rights with­out their con­sent, ex­cept by ex­pro­pri­a­tion. The IPILRA and the Min­eral and Petroleum Re­sources Devel­op­ment Act ex­plic­itly pro­vide for the ex­pro­pri­a­tion of land rights where the hold­ers of the sur­face rights do not con­sent to min­ing on their land and it is in the in­ter­ests of eco­nomic trans­for­ma­tion to do so.

So when Man­tashe and lawyers who rep­re­sent the min­ing houses say that giv­ing com­mu­ni­ties the right to say no will be the end of min­ing, they are be­ing disin­gen­u­ous as they are em­pow­ered by law to ex­pro­pri­ate the sur­face rights of those who ob­ject to min­ing.

Ex­pro­pri­a­tion is a has­sle, how­ever. Until re­cently, it has been the prac­tice to pay off tra­di­tional lead­ers and start min­ing rather than cal­cu­late and ne­go­ti­ate the costs of min­ing for the liveli­hoods of those whose land rights are How do you feel about ru­ral com­mu­ni­ties be­ing able to de­cide for them­selves if min­ing can take place on their land? SMS us on 35697 us­ing the key­word MIN­ING and tell us what you think. Please in­clude your name and prov­ince. SMSes cost R1.50. By par­tic­i­pat­ing, you agree to re­ceive oc­ca­sional mar­ket­ing ma­te­rial di­rectly af­fected be­fore min­ing be­gins.

In this con­text, the Le­setl­heng judg­ment on Oc­to­ber 25 that com­pen­sa­tion has to be de­ter­mined up­front be­fore min­ing has started fun­da­men­tally changes the bal­ance of power. Ex­pro­pri­a­tion also means that the courts will mon­i­tor the process, in­clud­ing whether min­ing is ac­tu­ally in the pub­lic in­ter­est. Far too many min­ing rights are is­sued to peo­ple who want short-term prof­its at the ex­pense of per­ma­nent dam­age to ru­ral liveli­hoods and cru­cial shared re­sources such as wa­ter.

In essence, the judg­ments mean that min­ing houses will have to of­fer the peo­ple who are di­rectly af­fected by it a fair deal if they want them to con­sent to min­ing.

When the min­ing boom shifted to the for­mer home­lands, many ru­ral com­mu­ni­ties wel­comed the min­ing houses be­cause they hoped jobs and devel­op­ment would fol­low. But the wide­spread abuses that have been con­doned and, to some ex­tent, elicited by the depart­ment of min­eral re­sources, have turned that hope into de­spair.

Ru­ral peo­ple all around South Africa are en­gaged in life-or-death strug­gles to pro­tect their land rights and de­mand ac­count­abil­ity from gov­ern­ment, tra­di­tional lead­ers and min­ing houses.

In­stead of ac­knowl­edg­ing the prob­lems de­scribed in the two re­ports men­tioned ear­lier and wel­com­ing the clar­ity now pro­vided by the Le­setl­heng and Xolobeni judg­ments, Man­tahse ap­pears in­tent on ap­peal­ing the Xolobeni judg­ment.

He is quoted in City Press as say­ing that the judg­ment will lead to cor­rup­tion be­cause it will en­able ru­ral com­mu­ni­ties to play dif­fer­ent min­ing com­pa­nies off against one an­other for their own profit. His as­sump­tion seems twofold – that it is gov­ern­ment’s sole pre­rog­a­tive to profit from this role, and that com­mu­ni­ties are some­how in­ca­pable of act­ing in their ra­tio­nal self-in­ter­est.

Gov­ern­ment and the min­ing com­pa­nies have en­tered into a devil’s com­pact to ig­nore and un­der­mine the prop­erty rights and de­ci­sion-mak­ing au­thor­ity of ru­ral peo­ple pro­vided that min­ing prof­its and op­por­tu­ni­ties are dis­trib­uted to po­lit­i­cally con­nected BEE part­ners. They should pause to think about the message that they are send­ing to the ma­jor­ity of South Africans about the sanc­tity of pri­vate prop­erty and the rule of law.

Are there no min­ing com­pa­nies out there who see the judg­ments as an op­por­tu­nity in­stead of a threat? They pro­vide the chance to stop pay­ing off politi­cians and tra­di­tional lead­ers, and in­stead deal di­rectly with the fam­i­lies and in­di­vid­u­als af­fected by min­ing.

How ex­pen­sive can it be to play open cards and of­fer peo­ple al­ter­na­tive land and liveli­hoods that are at­trac­tive enough to make them want to live along­side min­ing?

Ur­ban South Africans are not pay­ing at­ten­tion to how Parliament is sys­tem­at­i­cally re­pro­duc­ing struc­tural in­equal­ity by en­act­ing laws like the Min­er­als and Petroleum Re­sources Devel­op­ment Act and the Tra­di­tional Lead­er­ship and Gov­er­nance Frame­work Act.

Worse than ei­ther of these laws is the Tra­di­tional and Khoi-San Lead­er­ship Bill, which is in the fi­nal stages of adop­tion in Parliament. Last-minute changes to the bill seek to get around the Le­setl­heng and Xolobeni judg­ments by em­pow­er­ing tra­di­tional lead­ers to sign deals di­rectly with third par­ties such as min­ing houses. The amend­ments seek to negate the con­sent re­quire­ments of the IPILRA by say­ing that tra­di­tional lead­ers can uni­lat­er­ally sign such deals “not­with­stand­ing other laws”.

This pa­thetic re­sponse to the judg­ments will not sur­vive con­sti­tu­tional scru­tiny, but a le­gal chal­lenge to the bill will take some years to reach the Con­sti­tu­tional Court. In the mean­time, the loot­ing will con­tinue, and the same peo­ple who bore the brunt of forced re­movals and past dis­pos­ses­sion will lose the resid­ual as­sets they man­aged to hold on to until the end of apartheid.

Claassens is the direc­tor of the Land & Ac­count­abil­ity Re­search

Cen­tre at the Univer­sity of Cape Town

In essence, the judg­ments mean that min­ing houses will have to of­fer those who are di­rectly af­fected by it a fair deal if they want them to con­sent to min­ing

Gwede Man­tashe

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