Nonhle Mbuthuma of Amadiba Crisis Committee shows the red sand at Kwanyana Beach near Xolobeni in the Wild Coast that is at the centre of the dune mining dispute. Picture: DAILY DISPATCH/LOYISO MPALANTSHANE
Nonhle Mbuthuma of Amadiba Crisis Committee shows the red sand at Kwanyana Beach near Xolobeni in the Wild Coast that is at the centre of the dune mining dispute. Picture: DAILY DISPATCH/LOYISO MPALANTSHANE

The high court in Pretoria has ruled that the minister of mineral resources has no lawful authority to grant a right to mine in Xolobeni on the Wild Coast unless full and informed consent has been obtained from community. 

In the legal challenge brought by 128 Umgungundlovu community members against the minister of mineral resources, Transworld Energy and Mineral Resources and four others, the community argued that a mineral right cannot be granted in terms of the Mineral and Petroleum Resources Development Act (MPRDA), without the consent of a community as required by the Interim Protection of Informal Land Rights Act.

Disputes over the potential mining of the titanium-rich dunes of Xolobeni by Transworld, a subsidiary of Australian-listed Mineral Commodities, have raged on for over a decade and even resulted in a number of deaths in the area.

In August mining minister Gwede Mantashe proposed the extension of a moratorium on the awarding of mining rights for the area as tensions continued to simmer.

In the judgment, handed down on Thursday, it was concluded that indeed the two acts must be read together.

“In keeping with the purpose of the Interim Protection of Informal Land Rights Act to protect the informal rights of customary communities that were not protected by the law, the applicants in this matter therefore have the right to decide what happens with their land,” the judgment read.

“As such, they may not be deprived by their land without their consent.”

The community, however, appears divided on the potential mining. Those opposed to the mining worry about displacement from their homes and grazing lands, and environmental degradation. But supporters argue that it would be a huge economic benefit in the area, which is one of the poorest in the country.

In the judgment, the court declared that the minister of mineral resources lacked lawful authority to grant a mining right unless he and the minister of rural development and land reform and his director-general had complied with the provisions of the Interim Protection of Informal Land Rights Act.

In terms of this act, the mining minister is obliged to obtain “the full and informed consent of the applicants and the Umgungundlovu community, as a holder of rights in land, prior to granting any mining right” to Transworld Energy and Mineral Resources.

The court ordered that costs of the community’s application be paid by the respondents in the department of mineral resources, and by the company.

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

steynl@businesslive.co.za