High court sends minister packing

VICTORY: NO MINING ON XOLOBENI ANCESTRAL LAND

Judge tells mineral resources department

to go back and familiarise with state Acts.

Members of the Eastern Cape Xolobeni community yesterday cheered after a historic ruling in the High Court in Pretoria gave them the right to say no to mining on their ancestral land.

Judge Annali Basson ruled that the minister of mineral resources is obliged to obtain the full and informed consent of the Umgungundlovu community before granting any mining right to Australian company Transworld Energy and Mineral Resources, which plans an open-cast titanium mine along a 22km-long strip along the unspoiled Wild Coast ancestral land.

Basson ruled that the Mineral Petroleum Resources Development Act and the Interim Protection of Informal Land Rights Act (Ipilra) must be read together and that Minister Gwede Mantashe lacked any lawful authority to grant mining rights unless Ipilra had been complied with.

“In keeping with the purpose of Ipilra to protect the informal rights of customary communities that were previously not protected by the law, the applicants in this matter therefore have the right to decide what happens with their land,” the judge ruled.

“As such, they [the applicants] may not be deprived of their land without their consent.

“Where the land is held on a communal basis – as in this matter – the community must be placed in a position to consider the proposed depravation and be allowed to take a communal decision in terms of their custom and community on whether they consent or not to a proposal to dispose of their rights to their land,” she added.

The ruling struck a blow for all customary communities in South Africa facing the complete destruction of their cultural way of life by mining activities without them having any say in the granting of mining rights.

The Xolobeni community’s attorneys, Richard Spoor and Johan Lorenzen, welcomed the ruling as important for all who lived in communal communities. “After many years of tireless struggle and heavy sacrifices, the Xolobeni community’s right to say ‘no’ is affirmed by the court.”

The department of mineral resources said it was studying the judgment and would pronounce itself on the matter in due course.

Judge Basson said the community and their ancestors have lived on the land according to their customs dating back to the 1800s and that their fears that the disastrous social, economic and ecological consequences of mining would overwhelm their way of life, drive them from their homes and ruin their way of life were not unfounded.